CaseGuide by Compendia, Inc.

Terms of Service

Effective Date: 21 February 2024

Welcome to Compendia, Inc (“Compendia”). Compendia has developed, and updates from time to time, an online data importing, organizing, analyzing, reviewing, and reporting service that assists customers in the handling of electronic information for research, investigations, and litigation known as CaseGuide (“CaseGuide”).

Please review these Terms of Service carefully, including the binding arbitration clause and class action waiver in section 12.6 below, as they contain the legal terms and conditions that govern your access to and use of CaseGuide. The term “Customer” means the individual or entity that registers for or uses CaseGuide.

Your acceptance of these Terms of Service is required in order for you to access and use CaseGuide. By registering with us, or by using CaseGuide in whole or in part, you are entering into a legally binding agreement with Compendia. If you do not agree to these Terms of Service, you cannot use CaseGuide.

Compendia may modify these Terms of Service at any time by posting updated versions of the Terms on the CaseGuide website at https://caseguide.com/terms/current. Such modifications become effective and binding on Customer upon the earlier of (i) any Customer access to or use of CaseGuide after the date they are posted or (ii) thirty (30) days after the modifications are posted. Any continued Customer access to or use of CaseGuide after the modifications have become effective will be deemed conclusive acceptance of the updated Terms of Service.

1. Definitions

Capitalized terms have the meanings in this Section 1 (Definitions).

"Access Information" is the username, password, and other log-in information for access to CaseGuide.

“Authorized Users” are Internal Users and Invited Users of your Organization in CaseGuide.

“CaseGuide” is software applications and tools, documentation, application programming interfaces and other materials, provided by Compendia, as may be updated or modified from time-to-time.

"Content" is text, images, graphics, photos, video, audio, and any other content, information or data, transmitted, created, derived from or accessible via use of CaseGuide. The term "your Content" means Content originating or derived from your Authorized Users’ use of, or that you and/or Authorized Users, input into CaseGuide.

“Data Processing Agreement” or “DPA” is the data processing agreement set forth in Exhibit B as an addendum to these Terms of Service.

“Internal Users” are those users you have been added as a member of your Organization, regardless of Role or Permissions.

“Invited Users” are those users you have granted access to your Organization but not added as a member of your Organization, regardless of Role or Permissions.

“Organization” is the Customer’s area in CaseGuide assigned to and managed by the Customer.

“Permissions” are settings assigned to an Internal User that allows to user to perform certain functionality; without the permission being assigned, the Internal User cannot perform the functionality.

“Role” is a collection of Permissions, with a assigned a name for the collection.

"Order" is the online signup page or separate ordering form (as may be amended), digitally or physically accepted by Compendia and Customer, setting forth the subscriptions you have purchased for access to the Compendia Solution, terms regarding Support Services, if any, and other associated terms.

"Other Applications": are online or offline software, products, services, functionality, hardware, networks and Content not developed or provided by Compendia, including any of the foregoing that is owned or licensed by you or any third party, or that is processed, made available, or enabled for use and display, via CaseGuide. The term Other Applications includes without limitation web sites, applications and services that have signed up to use CaseGuide.

"Privacy Policy" is Compendia’s privacy policy available at https://compendia.digital/privacy, as may be amended from time-to-time.

"Support Services" are an extension to Customer of the Service-Level Agreement (SLA) set forth in Exhibit A hereto, and any other services Compendia may perform for Customer relating to the training, setup, use and/or support of CaseGuide, which may include helpdesk services and consulting.

"We", "us", "our" or "Compendia" is Compendia, Inc., organized under the laws of Delaware, United States.

"You" or "your" is the Customer identified in the Order.

2. Access to CaseGuide

2.1 Availability. Subject to your compliance with these Terms of Service, including payment obligations, we will make available a subscription to CaseGuide in accordance with the applicable Order(s). You acknowledge that your decision to use CaseGuide is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by Compendia. You may not use CaseGuide if you are barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use CaseGuide. If you are using CaseGuide on behalf of a company, you warrant that you have full power and authority to bind such company to these Terms of Service. The Compendia Service is not intended for and should not be used by anyone under the age of eighteen.

2.2 Consent to Emails. You agree and consent to receive email messages from Compendia, which may be transactional, for account management purposes, or for communications relating to or provided as part of CaseGuide, including notifications related to Support Services, administrative notices and service announcements or changes.

2.3 Reservation of Rights. We retain all right, title and interest in and to CaseGuide and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by CaseGuide are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy CaseGuide, except for your own personal use or your own business operations, and solely in accordance with these Terms of Service.

2.4 Your Content. You retain all right, title and interest in and to your Content and all associated intellectual property rights.

2.5 Authorized User Personal Information. Compendia agrees to process the personal information of Authorized Users solely for the purpose of providing CaseGuide, and will not retain, use, or disclose such personal information for any purpose other than for the specific purpose of so providing CaseGuide, except as allowed or required by applicable law.

3. Use of CaseGuide

3.1 Necessary Systems. Access to and ability to effectively use CaseGuide is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of CaseGuide requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.

3.2 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to CaseGuide for our business purposes, including for product licensing, support, marketing, and development, without any obligation or payment to you.

3.3 Information. You hereby consent to the collection and use by or for us of non-personally identifying or anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of CaseGuide, including in order to provide the functionality of and improve CaseGuide, for product development and marketing purposes, to protect against spam and malware, and for verifying Terms of Service compliance.

3.4 Unauthorized Use. You will not use CaseGuide or participate in any activities via CaseGuide in a manner that is likely to be prohibited by law or these Terms of Service or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of CaseGuide must be in full compliance with applicable law. You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use or access CaseGuide: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. You will not (a) copy the CaseGuide source code or markup language; (b) distribute to or share use of CaseGuide with any third party; (c) modify, or create derivative works or improvements of, CaseGuide; or (d) sublicense, rent, lease, or host CaseGuide. All rights not expressly granted in this section are reserved to us. You will have no right or license to the Compendia Software other than as set forth in Section 4.1.

3.5 Notifications to You. For purposes of service messages and notices about CaseGuide to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms of Service. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms of Service through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.

4. Software License

4.1 License Grant. Subject to your compliance with the obligations of these Terms of Service, we hereby grant to you a non-sublicensable, non-transferable, and non-exclusive license to use CaseGuide on any supported computing device owned by you or in your exclusive possession, for your internal or personal use in support of your business or personal operations.

4.2 Updates. The Compendia Software may update automatically. Updates may be required for your continued use of CaseGuide. Compendia is not obligated to make any updates available.

4.4 Ownership. We and our licensors retain all right, title and interest in CaseGuide and associated intellectual property rights, and all copies of CaseGuide. The structure, sequence, organization, and code of CaseGuide constitute our and our licensors' valuable trade secrets and copyrighted confidential information. You will preserve and not suppress our proprietary notices, markings, and branding associated with or displayed via the use of CaseGuide.

4.5 Reverse Engineering. You will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from CaseGuide, or work around technical protections or limitations associated with CaseGuide, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with CaseGuide; (c) such activity is confined to those parts of CaseGuide which are necessary to achieve interoperability; and (d) we have not made such information available to you under reasonable terms and conditions. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to CaseGuide.

4.6 Open-Source Software. Certain components or libraries included in or bundled with CaseGuide may be subject to “open source” or “free software” licenses and may be owned by third parties. To the extent required by such open-source licenses, the terms of such licenses will apply in lieu of the terms of this section, solely with respect to those libraries or components that are licensed under such open-source licenses, and as required by their terms.

5. Access Information & Content

5.1 Access Information. You agree to maintain the confidentiality of Access Information and to be liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use Access Information of another, without our prior written consent. You will immediately notify Compendia of any unauthorized use of Access Information or any other breach of security via email sent to privacy@compendia.digital . We will not be liable for any loss or damage arising from lost or forgotten Access Information, including associated loss of Content, from failure to comply with this section or from unauthorized use of Access Information.

5.2 Content. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of Compendia, users and/or the public. We may terminate CaseGuide access in response to a violation or suspected violation of these Terms of Service.

5.3 License to Content. You hereby grant to Compendia the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, copy and transmit your Content solely for the purposes of providing CaseGuide to or for the benefit of you and Authorized Users.

6. Other Applications

You are solely responsible for the Other Applications. Compendia will not be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind incurred as a result of the use of the Other Applications. You hereby waive and release any claims you may have against Compendia arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of CaseGuide and on reasonable terms or otherwise, we may cease providing such features of CaseGuide, without entitling you to any refund, credit or other compensation. You may be subject to additional terms and conditions that may apply when you use Other Applications.

7. Support Services

Subject to your compliance with these Terms of Service, Compendia will provide Service-Level Agreement (SLA) support as set forth in Exhibit A, and we may, in our sole discretion and without obligation, provide the following Support Services:

a. We may use commercially reasonable efforts to provide email help desk, query and incident support, in support of your use of CaseGuide.

b. We may implement for your benefit all upgrades, enhancements, ports, bug fixes, and new releases to CaseGuide when and if, in our sole discretion, released by us.

8. Payment

8.1 Subscriptions. You will pay to Compendia the fees listed, on the dates specified, in the Order (provided that payment to us is not otherwise made via the Other Applications), if any payments are owed. Unless otherwise specified in the Order, subscription fees are based on either monthly or annual periods that begin on the subscription start date and each monthly or if applicable annual anniversary thereafter. By providing us with a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. We may bill you in advance, at the time of purchase, shortly after purchase, or on a recurring basis for subscriptions. We may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed. You will not develop multiple Other Applications to simulate or act as a single Other Application or otherwise access CaseGuide in a manner intended to avoid incurring fees. The terms of this section will not apply to users paying us via Other Applications.

8.2 Orders. All payments are non-refundable and are exclusive of bank service fees or currency exchange settlements. Payments will be made via the method designated by us. In the event you are delinquent in the payment of any invoice, we may at our option suspend access to CaseGuide until such payments are made in full. Payments to us will be made without deduction, counterclaim or set-off of any kind, except as required by the Service-Level Agreement (SLA).

8.3 Billing Errors. If we make an error on a charge to your billing account, you must contact us with the details within 120 days from when the error first appears on your billing statement. If you do not inform us of the issue within that time, you release us from all liability and claims of loss resulting from the error and we will not be required to correct the error or provide a refund.

8.4 Response to Process. If we are required to respond to a subpoena or other formal request from a third party or a governmental agency for records or other information relating to CaseGuide or services we have performed or solutions we have provided for you or on your behalf, or to testify by deposition or otherwise, you will reimburse our time and expenses incurred in accordance with our then-current time and expense rates. This section will not apply in respect of proceedings in which the parties are adverse to each other.

8.5 Taxes. You will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms of Service or provision of CaseGuide (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you.

9. CaseGuide Integrity

9.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of CaseGuide, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of CaseGuide, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of CaseGuide by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the Compendia Service, our computer systems, or the technical delivery systems of us or our providers; (g) transmitting any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access CaseGuide by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing CaseGuide.

9.2 Illicit Access. You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through CaseGuide, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium CaseGuide in whole or in part, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of CaseGuide. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of CaseGuide.

10. Disclaimer of Warranties, Limitation of Liability & Indemnity

10.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, we provide CaseGuide on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO CASEGUIDE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) CaseGuide will meet your requirements, goals, or needs, (b) CaseGuide access will be uninterrupted, timely, secure, or error-free, or (c) any errors or deficiencies in CaseGuide will be corrected. Because no online system is perfectly secure or reliable, the Internet is an inherently insecure medium, and the reliability and security of hosting services, Internet intermediaries, your Internet Service Provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of CaseGuide.

10.2 Exclusion. Notwithstanding any other provision of these Terms of Service, our maximum cumulative aggregate liability for all claims, liabilities or obligations arising under or relating to the "Subject Matter" (defined as these Terms of Service, the Privacy Policy, the Data Processing Agreement, Authorized Users, Content, Other Applications, and CaseGuide), regardless of the number of claims or the theory of liability, whether for breach of these Terms of Service, including breach of warranty, or in tort or otherwise, will not exceed all amounts paid by you to us under these Terms of Service, if any, during the three-month period preceding the occurrence of the claim or event giving rise to liability. We will not be liable for any indirect, punitive, special, incidental or consequential damages, or liable for interruption of business, diminution of value, cost of replacement, downtime, loss of profits, revenue, use, data, Other Applications, or other economic advantage, in connection with, related to or arising out of the Subject Matter, regardless of the theory of liability, whether for breach of these Terms of Service, including breach of warranty, or in tort or otherwise, even if we have been previously advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this section allocate the risks under these Terms of Service between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting the Subject Matter exclusively in contract pursuant to these Terms of Service, and you expressly disclaim that you are owed any duties or are entitled to any remedies not expressly set forth in these Terms of Service. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.

10.3 Indemnification. You hereby agree to fully indemnify, defend and hold harmless Compendia, our affiliates, and officers, directors, employees and agents of us and our affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers’ fees and costs) brought by Authorized Users, or directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) Other Applications; (b) breach of these Terms of Service; (c) infringement of intellectual property rights; or (d) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any such claims without our prior written consent.

10.4 General Release. You further agree that these Terms of Service waive and release any claims that would otherwise be preserved by operation of Section 1542 of the California Civil Code, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

11. Termination

11.1 Term. Access to CaseGuide commences upon our acceptance of or as applicable the date set forth in the Order and will continue in effect as specified in the Order. These Terms of Service will remain in effect for as long as any subscriptions are in effect. If automatic renewals are allowed in your jurisdiction, we will inform you by email before automatically renewing your subscription, unless your access to CaseGuide is via Other Applications. Once we have informed you that your subscription will be automatically renewed, we may charge you the then current price for the renewal term. We will also provide you with instructions on how you may cancel the subscription. You must cancel the subscription before the renewal date to avoid being billed for the renewal. The terms of this section will not apply to users paying us via Other Applications.

11.2 Termination. In addition to Sections 12.1 and 12.2, a subscription will terminate immediately upon your breach of these Terms of Service. We may on written notice terminate any subscriptions or rights granted under these Terms of Service in the event CaseGuide in whole or in part is in our reasonable judgment subject to a claim of infringement of the intellectual property rights of any other person or entity. We may additionally terminate a subscription upon written notice to you if you or we (a) become the subject of a legal proceeding under a law relating to insolvency or bankruptcy; or (b) have property come under the control of a custodian or equivalent under applicable law, or that is assigned for the benefit of creditors; or (c) generally fail to pay debts as they become due.

11.3 Effect. The rights of either party under this Section 11 are in addition to any other rights and remedies permitted by law or under these Terms of Service. Breach of these Terms of Service may result in pursuit of all available remedies for intellectual property rights (including intellectual property rights infringement), the availability of which you hereby acknowledge. Upon termination of rights or access for any reason, all licensed rights granted under these Terms of Service, access to CaseGuide, and all Support Services will terminate, and you will immediately cease all use and distribution, and destroy all copies, of CaseGuide.

12. General Provisions

12.1 Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of CaseGuide.  

12.2 Account Termination. We may terminate your account or access for cause, including without limitation for: (a) violation of these Terms of Service; (b) abuse of Compendia resources or any attempt to gain unauthorized entry to CaseGuide; (c) use of CaseGuide in a manner inconsistent with its purpose; or (d) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of CaseGuide for our own business reasons, including if we elect to cease being in the business of providing it or if the owners of Other Applications make continued operation commercially impracticable or unreasonable. After account termination, you will not attempt to register a new account without our permission.

12.3 Trademarks; Media. You are granted no right, title or license to any third party trademarks by these Terms of Service, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including Compendia and CaseGuide. You hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected CaseGuide. You may revoke such authorization at any time upon five business days’ written notice to us.

12.4 Delaware, USA-Based. CaseGuide is controlled by us from our offices in Dover, Delaware . Your use of or access to CaseGuide will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than North Carolina and Tennessee.

12.5 Governing Law; Choice of Forum. The Subject Matter (as defined in section 10.2), and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the procedural and substantive laws of Delaware, without regard to conflicts of laws rules, and to the maximum extent permitted by applicable law, the parties hereby waive the right to a jury trial for any such disputes. For clarity, this section is not intended to extend to non-residents of Delaware the benefits, rights, or privileges of Delaware law. Subject to section 12.6, the state and federal courts located in Dover County, Delaware will have jurisdiction over any disputes between the parties arising out of or related to the Subject Matter, and both parties hereby consent and submit to the jurisdiction of such courts for such disputes and waive any objections to the exercise of such jurisdiction. If you are a resident of the US, such courts will have exclusive jurisdiction over any such disputes, except that we may bring an action for recovery of injunctive or provisional relief, or an action claiming infringement or misappropriation of intellectual property rights, or both, in any court of competent jurisdiction under the laws applicable thereto. If you are not a resident of the US, such jurisdiction will be non-exclusive.

12.6  Arbitration.

(a) Any disputes between or claims brought by you or us arising out of or related to the Subject Matter (as defined in section 10.2), including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the enforceability of this section 12.6 and the arbitrability of any disputes (subject to sections 12.6(d) and 12.6(e) below) will be referred to and finally settled by (1) informal means as set forth in section 12.6(b), and if such means are unsuccessful at resolving the dispute(s), (2) binding arbitration as specified in this section 12.6. If you are a US resident, such arbitration will be conducted before a single arbitrator conducted by the American Arbitration Association (AAA), in accordance with (except as inconsistent with this section 12.6) the AAA Commercial Arbitration Rules (Expedited Procedures) in effect at the time of arbitration (current version available at https://www.adr.org/sites/default/files/CommercialRules_Web.pdf), and venue for the arbitration will be any one of the following cities that is closest to your residence: Nashville, TN or Chapel Hill, NC. If you are not a resident of the US, arbitration will be conducted before a single arbitrator of the International Court of Arbitration in accordance with (except as inconsistent with this section 12.6) the Rules of Arbitration of the International Chamber of Commerce, Expedited Procedures (current version available at https://iccwbo.org/dispute-resolution-services/arbitration/expedited-procedure-provisions/), and venue will be held in any one of the following cities that is closest to your residence: Nashville, TN or Chapel Hill, NC. All arbitral proceedings, hearings and submissions will be in the English language. The parties agree that this section 12.6 states the exclusive means of resolving disputes between the parties regarding the Subject Matter, and that the parties therefore waive the right to a trial by jury.

(b) Except for actions or claims described in section 12.6(e)(2) or 12.6(e)(3), we will first try to resolve dispute(s) between us informally and neither of us may start a formal arbitration proceeding for at least thirty days after one of us notifies the other of a dispute in writing. Notice of the dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. 
 
(c) The arbitration will be conducted without in-person appearances (as in a live hearing) if (1) the credibility of testifying witnesses is unnecessary to the resolution of the dispute; (2) the parties agree to waive in-person appearances; (3) the applicable arbitration rules permit waiver of or otherwise don't require in-person appearances; (4) the claim does not exceed $10,000; or (5) the arbitrator determines that in-person appearances are unnecessary or unhelpful, or would be burdensome to any of the parties to the arbitration or to their staff. If in-person appearance is required, such hearings will be held via videoconference unless the arbitrator determines, in the arbitrator's reasonable discretion, that a videoconference is not suitable. For clarity, nothing in these Terms of Service abrogates either party's right to a transcription of all arbitration proceedings at such party's own expense.
 
(d) The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class, consolidated or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. The validity and effectiveness of this section 12.6(d) is not arbitrable.
 
(e) Notwithstanding the foregoing, nothing in this section 12.6 will preclude the right and ability of either party to bypass arbitration and file and maintain at any time: (1) an individual action in any US small claims court of competent jurisdiction; (2) an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto; and (3) an action claiming infringement or misappropriation of intellectual property rights in any court of competent jurisdiction under the laws applicable thereto. Such actions, either party's right to pursue such actions, and the validity and effectiveness of this section 12.6(e) are not arbitrable. For clarity, nothing in these Terms of Service will be construed as either party's consent to the exercise of the jurisdiction of any court except as set forth in section 12.5.
 
(f) Subject to sections 12.6(d) and 12.6(e), all claims and disputes between the parties relating to the Subject Matter must be resolved using arbitration in accordance with this section 12.6. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion.
 
(g) Except to the extent required by law or in order to enforce arbitral awards in court, the parties shall keep confidential, make no public announcements regarding, and shall not disclose the existence of (1) any dispute, (2) the existence or details of the arbitration proceeding, and (3) all related documents, materials, evidence, judgments and awards therein.
 
(h) The arbitrator will apply the law specified in section 12.5, without regard to conflicts of law rules. If you are a US resident, the parties agree that these Terms of Service evidence a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this section 12.6.
 
(i) The parties acknowledge that if one or more provisions of this section 12.6 is found to be unenforceable, invalid, preempted or unlawful for any reason, the parties' intention is to (1) maintain the enforceability of such invalid or unenforceable provision in any circumstances other than those this in which the provision is held to be unenforceable, (2) modify such provision to the extent the provision can be rendered enforceable, and (3) sever such invalid or unenforceable provision from the remaining section 12.6 so as to preserve as much of the remaining as possible, so that such provision will not impact the ability to compel arbitration of any remaining claims on an individual basis. To the extent that any claims must proceed on a class, collective, consolidated, or representative basis, such claims will be litigated in the courts specified in section 12.5, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.

12.7 Limitation. You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.

12.8 Assignment. These Terms of Service will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms of Service without prior consent or notice. These Terms of Service will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.

12.9 Injunctive Relief. You acknowledge and agree that breach of these Terms of Service, or any unauthorized use, disclosure or distribution of CaseGuide, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.

12.10 Force Majeure. No delay, failure or omission by or caused by us to carry out or observe any of our obligations hereunder will give rise to any claim against us or be deemed to be a breach of these Terms of Service if and for as long as such failure or omission arises from any cause beyond our reasonable control.

12.11 Miscellaneous. The Terms of Service constitute the entire agreement between you and us and govern your use of CaseGuide, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service will remain in full force and effect. No waiver of any provision of these Terms of Service will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms of Service will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between these Terms of Service and any Compendia website page (including any page describing or summarizing your or our rights, obligations, and/or these Terms of Service), these Terms of Service will control. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these Terms of Service extend rights to any third party. The parties hereto confirm that they have requested that these Terms of Service and all attachments and related documents, if any, be drafted in English.

Exhibit A: Service Level Agreement (SLA)

A. Service Level Agreement (SLA). This Exhibit A: (i) states your sole and exclusive remedy and our sole liability and obligation in the event of any delay, error, fault, failure or unavailability of CaseGuide for any reason; and (ii) applies only if CaseGuide is subject to downtime as described in paragraph B below.

B. Warranty. Subject to Paragraph E. (Exclusions) below, Compendia warrants that CaseGuide will achieve total uptime equal to or better than 99.9% per calendar month; uptime will be measured on a cumulative basis across the total number of sub-services made available by CaseGuide in such calendar month (the “Number of Sub-Services”).

C. Number of Sub-Services. The Number of Sub-Services currently includes the functions listed below, which may be updated from time to time as Compendia makes additional functionality available. Compendia will update this Service Level Agreement (SLA) from time to time, with or without notice to Customer, to include the then-current list of Number of Sub-Services.

i. Organization Management

ii. Case Management

iii. File Import

iv. Optical Character Recognition (OCR)

v. Report Generation & Export

D. Calculation of Uptime. As used in this Service Level Agreement (SLA), the following definitions are used to calculate Uptime:

Downtime = as defined in Paragraph E.

Excluded Downtime = as defined Paragraph F.

Sub-Service Minutes = Total Calendar Month Minutes * Number of Sub-Services in Calendar Month

Calendar Month Minutes = Total Minutes in the Calendar Month

U​ptime​ = [(Sub-Service Minutes – Downtime) / (Sub-Service Minutes – Excluded Downtime)] * 100

E. Downtime​. Downtime shall equal the cumulative number of minutes each of the Number of Sub-Services are not accessible during the Calendar Month.

F. Excluded Downtime. Excluded Downtime is any Downtime that is the result of:

a. configuration errors made by Customer;

b. Customer prevents Compendia from performing required maintenance, including necessary upgrades;

c. Customer’s unsupported equipment or software or by other services not within Compendia’s reasonable control;

d. performance of hosting providers, internet services, networks or traffic exchange or control points controlled by entities other than Compendia, or caused by network latency;

e. Other Applications or any acts, omissions, connections or equipment of any third party;

f. suspension or termination of CaseGuide or your subscription as permitted by the Terms of Service;

g. suspension or termination of CaseGuide or your subscription for emergency reasons, as required by law or any governmental authority or agency, or as needed in order to prevent or ameliorate violations or infringements of third party rights or applicable law;

e. circumstances or causes beyond Compendia’s reasonable control, including any force majeure event such as floods, war, and acts of god.

or occurred during:

a. a scheduled maintenance window announced at least seven business days in advance via either email or banner notification within CaseGuide;

b. an evaluation trial or beta test;

c. a period during which Compendia agrees to provide access to CaseGuide without charge;

d. a period in which you are delinquent in the payment of any invoice from Compendia for more than ten business days for any reason.

Excluded Downtime will include the cumulative number of minutes each of the Number of Sub-Services are not accessible during the Calendar Month due to the reasons provided above.

G. Remedy. As your sole and exclusive remedy, and our entire liability, for failure to comply with the Uptime warranty of Paragraph B. above, Compendia will issue to you “Service Credits”, defined as a monetary credit, as set out in the table in Paragraph I. below, against subscription fees due for the next full period following the date of the Service Credit Claim. Service Credits will be granted upon calculation of Uptime and validation of a Service Credit Claim. Service Credits are not transferable and may be redeemed only against future payments otherwise due to us.

H. Process. You must notify Compendia of any perceived Downtime. Downtime will begin to accrue as soon as we confirm such Downtime, and continues until availability is restored. You must submit a Service Credit Claim within ten business days from the end of the Calendar Month in which Downtime was confirmed. Each Service Credit Claim must be submitted by email to support@compendia.digital. Such notification must include the dates and times of alleged unavailability, including request logs that corroborate the claimed outage. We will endeavor to review and resolve all claims within ten business days of receipt. 

I.     Service Credits.

Monthly Uptime Percentage : Credit

≥ 99.9% : No Service Credit

< 99.9% and ≥ 97.0% : Service Credit equal to 10% of the Calendar Month subscription fee

< 97.0% and ≥ 95.0% : Service Credit equal to 20% of the Calendar Month subscription fee

< 95.0% : Service Credit equal to 40% of the Calendar Month subscription fee

Exhibit B: Data Processing Agreement (DPA)

This exhibit is applicable only if any of your Authorized Users are based in the EU and only if and to the extent the Data Protection Legislation applies to your Authorized Users’ use of CaseGuide. This DPA supplements the Terms of Service. Capitalized terms not otherwise defined herein will have the meanings given to them in the Terms of Service.

DEFINITIONS

In this DPA, the following definitions apply:

“Data Protection Legislation” means the General Data Protection Regulation (EU 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time.

“Data Subject” will have the meaning given to it in Data Protection Legislation.

“Personal Data” means “personal data” as that term is defined in the Data Protection Legislation that is uploaded or transferred to CaseGuide under your Authorized Users’ Compendia accounts.

“Standard Contractual Clauses” means Annex 1, attached to and forming part of this DPA, pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.

“Sub-processor” means any data processor other than Compendia who have been instructed to process data on your behalf by Compendia.

Data Protection

1.1. Both parties will comply with all applicable requirements of Data Protection Legislation. This DPA is in addition to, and does not relieve, remove or replace, a party’s obligations under Data Protection Legislation.

1.2. This DPA applies when Personal Data is processed by Compendia for you. In this context, Compendia will act as “processor” to you, who may act either as “controller” or “processor” with respect to Personal Data (as those terms are defined in Data Protection Legislation).

1.3. Details of Data Processing.

Subject matter. The subject matter of the data processing under this DPA is Personal Data.

Duration. As between Compendia and you, the duration of the data processing under this DPA is determined by you.

Purpose. The purpose of the data processing under this DPA is the provision of CaseGuide initiated by you from time to time.

Nature of the processing: data management services for the benefit of your Authorized Users as described in the Terms of Service and initiated by you from time to time.

Categories of Data Subjects: Authorized Users.

1.4. You will ensure and warrants that you have all necessary appropriate consents and notices, in any form required by Data Protection Legislation or by the laws of the European Union, in place to enable lawful transfer of the Personal Data to Compendia for the duration and purposes of fulfilment of the Terms of Service.

1.5. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, you will ensure and warrant that you utilize appropriate technical and organizational measures to ensure a level of security appropriate to such risks.

1.6. Compendia will, in relation to any Personal Data processed in connection with the performance by Compendia of its obligations under the Terms of Service:

1.6.1. process that Personal Data only on your written instructions except to the extent Compendia is required to process data by the laws of any member of the European Union or by the laws of the European Union applicable to Compendia to process Personal Data and only to the extent required and necessary for the purposes of providing CaseGuide. Where Compendia is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Compendia will without undue delay notify you unless applicable law prohibits Compendia from so notifying you;

1.6.2. notify you without undue delay on becoming aware of a Personal Data security incident. Compendia is not obligated to report incidents that result in no unauthorized access to Personal Data or to any of Compendia equipment or facilities storing Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents. Compendia’s obligation to report or respond to a security incident under this section is not and will not be construed as an acknowledgement by Compendia of any fault or liability of Compendia with respect to the incident;

1.6.3. not access or use, or disclose to any third party, any Personal Data, except, in each case, as necessary to maintain or provide CaseGuide, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends Compendia a demand for Personal Data, Compendia will attempt to redirect the governmental body to request that data directly from you. As part of this effort, Compendia may provide your basic contact information to the government body. If compelled to disclose Personal Data to a government body, then Compendia will give you reasonable notice of the demand to allow you to seek a protective order or other appropriate remedy unless Compendia is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this section varies or modifies the Standard Contractual Clauses;

1.6.4. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

1.6.5. ensure that all Compendia personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

1.6.6. ensure that where Personal Data is transferred outside the EEA, adequate measures will be taken to ensure the Personal Data will be protected to an adequate level and the Data Subjects’ rights under the Data Protection Legislation will not be prejudiced by such a transfer. The Standard Contractual Clauses will apply to Personal Data that is transferred outside the European Economic Area (“EEA”), either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the Data Protection Legislation). The Standard Contractual Clauses will not apply to Personal Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or the same obligations as those under the Standard Contractual Clauses) will not apply if Compendia has certified under the EU-US Privacy Shield, adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of Personal Data outside the EEA;

1.6.7. maintain records of processing activities carried out on your behalf as required by Data Protection Legislation;

1.6.8. assist you in responding to any request from a Data Subject and in ensuring compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

1.6.9. at your written direction, delete or return Personal Data and copies thereof on termination of CaseGuide subscription unless required by applicable law to store the Personal Data.

1.7.  You will immediately notify Compendia if any necessary appropriate consents and notices required to enable lawful transfer of Personal Data to Compendia for the duration and purposes of this DPA have been breached, terminated or are otherwise no longer valid.

1.8. You agree that Compendia may use Sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services, and consents to the use of Sub-processors as described in this section. The Compendia website (currently posted at https://caseguide.com/terms/subprocessors/) lists Sub-processors that are currently engaged by Compendia. At least 10 business days before Compendia engages any new Sub-processor to carry out processing activities on Personal Data, Compendia will update the applicable website and provide you with a mechanism to obtain notice of that update. If you object to a new Sub-processor, you must notify Compendia in writing within ten days of your notice of the updated website (without prejudice to any termination rights you have under the Terms of Service).

1.9. Compendia may, at any time on not less than 30 days’ notice, propose revisions to this DPA by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to these Terms of Service). You and Compendia agree to negotiate such changes in good faith.

Annex 1: Standard Contractual Clauses (processors)

 

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the entity identified as “you” in the DPA (the “data exporter”) and Compendia (the “data importer”), each a “party”, together “the parties”, have agreed on the following contractual clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data  importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

Data exporter: The data exporter is the entity identified as “you” in the DPA.

Data importer: The data importer is Compendia, Inc.

Data subjects: Data subjects are defined in the DPA.

Categories of data: Personal data as defined in the DPA.

Processing operations: The personal data transferred will be subject to the following basic processing activities processing operations as defined in the DPA.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached): the technical and organisational security measures implemented by the data importer as described in the Terms of Service and the DPA.

Exhibit C: Example of Billing
The scenario below is meant to explain the Billing Process.

In the Calendar Month of January:

  • On January 5, ACME Corporation signs up for CaseGuide with one user at a $150 per month subscription and a 30-day free trial.

  • On January 10, ACME Corporation adds two Internal Users at a $150 per month subscription. The trial period has 25 days remaining.

  • On February 4, ACME Corporation’s account converts from the free trial to a paid account. $450 is billed to the credit card on file.

  • On March 4, $450 is billed to the credit card on file.

  • In the remaining weeks in the Calendar Month of March, five Internal Users are added at a $150 per month subscription.

  • On April 4, $1,200 is billed to the credit card on file.

  • Billing continues at $1,200 on the 4th of each Calendar Month until changes in the Internal User count occurs.

  • In the final weeks of November, two Internal Users are removed.

  • On December 4th, $900 is billed to the credit card on file.

  • Billing continues at $900 on the 4th of each Calendar Month until changes in the Internal User count occurs.

Exhibit D: Example of Service Credit Process
The scenario below is meant to explain the Service Credit Process.

In the Calendar Month of May:

  • $1,200 of subscription fees are paid by ACME Corporation to Compendia.

    • based on the Calendar Month of May Internal User count of eight and $150 per month subscription for each. [8 x $150 = $1,200]

  • There are five Sub-Services provided in CaseGuide, as enumerated in Paragraph C.

  • There are 44,640 minutes. This is the “Calendar Month Minutes” in the formulas below.

  • There are 223,200 Sub-Service Minute.

    • 44,640 Calendar Month Minutes * 5 Sub-Services / Calendar Month = 223,200 Sub-Service Minutes.

  • The File Import Sub-Service becomes unavailable for three hours during a previously scheduled and announced maintenance window during the Calendar Month of May.

    • This equals 180 minutes of Excluded Downtime.

  • The Optical Character Recognition (OCR) Sub-Service becomes unavailable for 4 hours in the Calendar Month of May.

    • This equals 240 minutes of Downtime.

    • Total Downtime includes Excluded Downtime. The month on May had 240 + 180 = 420 minuted of Downtime.

  • ACME Corporation notices one of the Sub-Services is unavailable and notifies Compendia.

  • Compendia troubleshoots the issue, restores availability to the Sub-Service, and notifies ACME Corporation.

During the Month of June:

  • On June 1, Compendia calculates the Downtime for the Calendar Month of May to be 99.892%.

    Uptime would be calculated as follows:

    U​ptime​ = [(Sub-Service Minutes – Downtime) / (Sub-Service Minutes – Excluded Downtime)] X 100

    Uptime = [(223,200 - 420) / (223,200 - 180)] * 100

    Uptime = [(222,780) / (223,020)] * 100

    Uptime = .99892 * 100

    Uptime = 99.982%

    • ACME Corporation is eligible for a 10% Service Credit, pending submission and validation of a Service Credit Claim.

  • On June 4, $1,200 is billed to the credit card on file for ACME Corporation.

  • On June 5, ACME Corporation submits a Service Credit Claim.

  • On June 15, Compendia validates ACME Corporation’s Service Credit Claim.

During the Month of July:

  • A Service Credit of $120 is applied to ACME Corporation’s account.

  • On July 4, $1,080 is billed to the credit card on file for ACME Corporation.

During the Month of August:

  • Billing resumes at $1,200 per month until the Internal User count changes.