Epiq Solutions Standard Terms and Conditions of Sale

February 21, 2019

Legal/Epiq Solutions Standard Terms and Conditions of Sale

Epiq Solutions Standard Terms and Conditions of Sale

February 21, 2019

The terms and conditions detailed herein (this “Agreement”) apply to your (“Customer”) purchase from Epiq Solutions (“Epiq”) of Epiq product(s) (the “Products”), including Epiq hardware (“Hardware”) and licenses to use Epiq software (“Software”). THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND EPIQ HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT APPLICABLE TO THE PURCHASE OF THE PRODUCTS. If a conflict occurs between this Agreement and another signed agreement between Customer and Epiq, or a formal quote issued by Epiq to Customer, the terms and conditions of the signed agreement or quote shall prevail and the remaining portions of this Agreement shall remain.

  1. Prices and Orders. Prices are set forth in the formal quote issued to Customer. Prices are valid for sixty (60) days unless otherwise stated in the quote. Customer orders should reference the Epiq quote number. All orders are subject to acceptance at Epiq's sole discretion. Once an order is accepted as communicated in an email to Customer, any changes to the order, including cancellation, must be agreed to by Epiq in writing and may be subject to reasonable cancellation and restocking charges.

  2. Invoices and Payments. Payment terms are set forth in the formal quote. If Customer is approved for credit, Epiq shall invoice at the time of shipment, and the date on the invoice (the “Invoice Date”) shall be used to determine when the payment is due. Late payments are subject to interest at a monthly rate of the lesser of 1.0% or the highest rate permissible by law. All payments shall be made by Customer to Epiq in U.S. dollars.

  3. Taxes and Import Fees. All prices exclude, and Customer is responsible for, any sales tax, use tax, value added tax, or any other federal, state, or local taxes arising from the purchase of the Products. Furthermore, for international orders, all prices exclude, and Customer is responsible for, any customs, customs broker clearance fees, duties, taxes, or any other import fees.

  4. Delivery, Title, and Risk of Loss. Title and risk of loss to the Products (for Software, the media) shall pass to Customer upon receipt (i.e. FOB Destination); provided however, Epiq retains a security interest and right of possession in the Products until Customer makes payment in full. Customer is responsible for all shipping fees set forth in the invoice, but Customer may elect to arrange for its own shipping or pick-up.

  5. Software. Software is licensed pursuant to the software license agreements provided with the Software or posted on-line where Customer downloads the Software. In the absence of such license agreements, in consideration of and conditioned upon Customer payment of any and all applicable fees to Epiq, Customer is granted a limited, revocable, non-exclusive and non-transferable right and license to use the Software only as intended and solely in conjunction with the Hardware or the Products, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the Software. For the avoidance of doubt, all Software is licensed, not sold, and title to the Software remains with its licensor(s).

  6. Limited Warranty. For a period of one (1) year from the Invoice Date (the “Warranty Period”), Epiq warrants that the Products will be free of defects in materials and workmanship that cause the Products to fail to substantially conform to the applicable Epiq published specifications (the “Limited Warranty”). If Customer notifies Epiq of a defect or non-conformance during the Warranty Period, Epiq will, in its sole discretion and within a reasonable amount of time (i) repair or replace the affected Hardware or Software; or (ii) refund the fees paid for the affected Hardware or Software. Repaired or replaced Hardware or Software will be warranted for the remainder of the Warranty Period or ninety (90) days, whichever is longer. Repaired or replaced Hardware may contain new or refurbished parts that are equivalent to new in performance and reliability and are at least functionally equivalent to the original parts. Customer must obtain an RMA number from Epiq prior to returning any Hardware to Epiq. For the avoidance of doubt, Epiq is under no obligation to repair or replace Hardware that is not first returned to Epiq for analysis at Epiq's facilities. Customer is responsible for shipping expenses to send the affected Hardware to Epiq, and Epiq is responsible for the return shipping expenses. This warranty does not cover and the Customer is solely responsible for installation or removal costs. Epiq reserves the right to charge a fee for examining and testing Products outside of the Warranty Period or for Hardware returned without an RMA number. Expressly excluded from the Limited Warranty are Products that were (a) physically damaged due to abuse, accident, neglect, or misuse (b) modified in an unauthorized way; (c) subjected to improper environment or operated outside of the published specification; (d) damaged due to inadequate maintenance, installation, repair, or calibration; or (e) damaged due to a hazard such as lightning, flood, or other act of nature, and as such, Epiq reserves the right to charge a fee for examining and testing such returned Products that have been expressly excluded from the Limited Warranty. THE REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND THE CUSTOMER'S SOLE REMEDIES, AND SHALL APPLY EVEN IF SUCH REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

    To notify Epiq of a defect and request an RMA number, please contact your sales representative or email: rma@epiqsolutions.com

  7. Epiq may optionally sell to Customer additional limited warranties and/or extend the Warranty Period for the Products, Hardware, or Software. If applicable, such additional or extended warranties may be governed by separate agreement(s) which, once executed, shall supersede the Limited Warranty Section without impacting the validity of the remaining sections of this Agreement. Extended warranties, if offered by Epiq in a formal quote and unless otherwise stated in the quote, must be purchased by Customer at the time of purchase or within sixty (60) days of the Invoice Date.

  8. Return Policy. Within thirty (30) days of the Invoice Date and for a 20% restocking fee, Customer may optionally return purchased unopened and undamaged Hardware that remains in original packaging. Because Epiq will not resell Hardware that has been powered up by any customer, no refunds will be offered for Hardware that has been removed from original packaging. Unless otherwise agreed to by Epiq in advance and in writing, no refunds will be offered for purchased Software licenses after the date at which Software was downloaded or otherwise obtained by Customer, or thirty (30) days past the Invoice Date, whichever occurs earlier.

  9. Support and Maintenance. During the Warranty Period, Customer may optionally register for one (1) user account on Epiq's support web-site (“Support Site”) per applicable Product purchase. Epiq reserves the right to charge additional fees for Support Site user accounts that are (a) not associated with an applicable Product purchase; (b) associated with a Product purchase that already has a user account associated with it; or (c) requested after the expiration of the Warranty Period for the applicable Product. Depending on the Product(s) purchased, Epiq shall grant the applicable level of Support Site access and support. Epiq reserves the right to revoke access to the Support Site at any time provided, however, that Customer has received all of the Products for which Customer has paid in full to Epiq. Software releases and updates will typically be provided through the Support Site, and Customer will be permitted to download purchased Software releases and updates during the Warranty Period.

    Epiq may optionally sell to Customer additional Support and Maintenance contracts that extend the period of support for the Products, Hardware, or Software. Support and Maintenance may be incorporated into additional limited warranties that extend the Warranty Period as described in Section 6, or may be governed by separate agreements. Such separate agreement(s), once executed, shall supersede this Support and Maintenance Section without impacting the validity of the remaining sections of this Agreement. Support and Maintenance contracts may typically be renewed annually and provide continued access to the Support Site, including Software updates. Support and Maintenance contracts must be purchased by Customer prior to the expiration of the Warranty Period or the expiration of an existing Support and Maintenance contract, whichever is later.

  10. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND EPIQ EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY IMPLIED WARRANTIES THAT MAY ARISE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. EPIQ DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. EPIQ DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.

  11. Intellectual Property. Epiq reserves all right, title, and interest in any intellectual property rights contained or embodied in Products, including any custom developments created or provided by Epiq under this Agreement. Nothing in this Agreement will be deemed to grant to Customer any ownership rights in such intellectual property. Epiq agrees to defend any third-party claim that alleges the Hardware or Software infringe any U.S. patent, copyright, or trademark (“Claim”). Customer shall promptly notify Epiq upon learning of any Claim, shall grant Epiq sole control over the defense and settlement of the Claim, and shall cooperate fully with Epiq in preparing a defense for the Claim. Epiq shall not be liable for a settlement made without its prior written consent. Notwithstanding the foregoing, Epiq shall have no obligation for any claim relating to or arising from (a) Customer's modifications of Hardware or Software; (b) failure to use Hardware or Software in accordance with the applicable documentation provided by Epiq; (c) the combination, operation, or use of Hardware or Software with any hardware or software not provided by Epiq; (d) the compliance of Epiq with Customer's specifications or directions; or (e) non-Epiq products. In the event that Epiq believes in its reasonable opinion that the Hardware or Software may be alleged to be infringing, for the purposes of mitigating any potential damages, Epiq may, at its option, (I) procure for the Customer the right to continue to use the Hardware or Software; (ii) replace them with comparable Hardware or Software that are free of such infringement; or (iii) refund the fees paid by Customer, in which case Customer shall promptly return the Hardware to Epiq and/or terminate the use of the Software.

  12. CUSTOMER INDEMNITY. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR TESTED FOR USE IN LIFE OR SAFETY CRITICAL SYSTEMS, HAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION; AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR ENVIRONMENTAL HARM. EPIQ EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE PRODUCTS FOR ANY SUCH USES. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD EPIQ HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF CUSTOMER'S USE OF THE PRODUCTS FOR ANY SUCH USES, INCLUDING CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF EPIQ.

CUSTOMER FURTHER ACKNOWLEDGES THAT IT IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY AND RELIABILITY OF THE PRODUCTS WHENEVER THE PRODUCTS ARE INCORPORATED IN ITS SYSTEM OR APPLICATION, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFELY LEVEL OF SUCH SYSTEM OR APPLICATION. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD EPIQ HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF CUSTOMER'S INCORPORATION OF THE PRODUCTS INTO , INCLUDING CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF EPIQ.

  1. LIMITATION OF LIABILITY. EPIQ SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF EPIQ ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT GIVING RISE TO SUCH CLAIM, REGARDLESS OF WHETHER SUCH DAMAGES ARE (A) FOUNDED IN WHOLE ARE IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE; AND (B) BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE.
  2. Force Majeure. Epiq shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of nature or governments; interruptions of telecommunications, power or transportation; failure of contractors or suppliers; or inability to obtain necessary labor or materials. In such cases of force majeure, Epiq reserves the right to cancel the applicable order without any liability to Customer.
  3. Export Control and Compliance. Customer acknowledges that the Products are subject to export controls under the laws and regulations of the United States (U.S.), including but not limited to the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.) administered by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”) and other applicable U.S. export control laws and sanctions regulations. Customer shall comply with such laws and regulations governing use, export, re-export, and transfer of the Products and shall obtain all required U.S. and local authorizations, permits, or licenses. Customer shall not sell or make available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons or missiles. Products may not be exported or re-exported to any country where sanctions are imposed by the U.S. government (which currently includes Cuba, Iran, North Korea, Republic of Sudan, and Syria but which may be modified by the U.S. government at any time). For the avoidance of doubt, the issuance of a quote, sales order acknowledgement, or an RMA by Epiq is not an export license. Customer represents and warrants it is not ineligible or otherwise restricted to receive Products and it will not export, re-export, or provide Products to any person or entity on BIS's Denied Persons List, Entity List or Unverified List or any other applicable restricted party list. Epiq reserves the right to cancel any order if Epiq believes that any export controls or trade sanctions laws may be violated.
  4. Governing Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of Illinois, U.S.A., without regard to principles of conflicts of laws. Any legal action or proceeding with respect to this Agreement or the Products shall be brought in the Circuit Court of Cook County, State of Illinois or the federal court of the United States of America for the Northern District of Illinois and each party hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of such Courts. The parties irrevocably waive any objection to the laying of jurisdiction or venue (including, but not limited to, any objection based on lack of personal jurisdiction or forum non-conveniens) which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.
  5. General Terms. This Agreement, and any terms incorporated herein by reference, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements, whether written or oral, with respect to the subject matter. Customer acknowledges reading this Agreement, understands these terms, and agrees to be bound by them. This Agreement may not be altered, supplemented, or amended by the use of any other document unless otherwise agreed to in writing by Epiq. No delay or failure by Epiq to exercise any right it has under this Agreement shall impair or be construed as a waiver of such right. A waiver of provision of this Agreement must be in writing and shall not be construed as a waiver or modification of any other term hereof, or as a continuing waiver of any provision. If any part, term, or provision of this Agreement is held illegal, unenforceable, or in conflict with any applicable and enforceable law, the validity of the remaining portions or provisions of this Agreement shall not be affected. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the parties with respect to this Agreement.
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