TERMS & CONDITIONS

This Agreement is made between the LDM Global entity named in the Schedule below (“LDM Global”) and the client(s) named in the Proposal (“the Client”) and is subject to the terms and conditions attached.

SCHEDULE

TERMS & CONDITIONS

The Parties Agree As Follows:

1. ACCEPTANCE OF OFFER
   1. If the Client accepts this offer the Client will be regarded as having entered into this Agreement and the Term shall commence. This means the Client will be bound by the terms and conditions set out in this document, including being invoiced in accordance with it. Acceptance may be one of the following ways:
      1. Signing and returning a copy of this document;
      2. Giving LDM Global instructions after receiving this document;
      3. Oral acceptance; or
      4. Allowing LDM Global to commence or continue to work on a Project.
2. DEFINITIONS
   1. In this Agreement, unless a contrary intention appears, the definitions set out in the Schedule will apply.
3. LDM GLOBAL SERVICES
   1. LDM Global will provide the Hosted Solution and/or the Ancillary Services to the Client for the Term.
   2. LDM Global will use its best endeavours to provide services that are fit for the purpose for which the services are required as communicated to LDM Global by the Client.
   3. LDM Global will only engage, employ or sub-contract persons to perform services who are properly qualified, well trained and adequately experienced to perform the duties allocated to them.
4. ANCILLARY SERVICES
   1. By this Agreement LDM Global makes an irrevocable standing offer to supply the Ancillary Services to the Client for the Fees for the Term and on the terms and conditions set out in this Agreement.
   2. The Client may, at any time during the Term of this Agreement, submit a Work Order to LDM Global, which shall be responded to by way of Scope of Works by LDM Global in accordance with clause 4.3.
   3. Upon receipt of a Work Order from the Client in accordance with clause 4.2, LDM Global shall provide a Scope of Works to the Client and setting out:
      1. A list and description of the services to be provided by LDM Global to the Client (“Specifications”);
      2. A list and description of each of the deliverables to be provided by LDM Global to the Client (“Deliverables”);
   4. If the Client approves the Scope of Works submitted under clause 4.3 (subject to such modification as may be reasonably required by the Client), the Scope of Works will be deemed to be incorporated into this agreement. If the Client does not approve the Scope of Works:
      1. The parties will agree on what parts of the proposed Scope of Works are approved by the Client, and the parties shall act as if the approved parts constitute the entire approved Scope of Works; and
      2. The parties agree to negotiate in good faith such changes to the Scope of Works until it is approved by the Client as a whole.
   5. Upon acceptance by the Client of a Scope of Works, the Scope of Works shall be known as a “Project”:
      1. LDM GLOBAL will assign a Project Manager to serve as primary point of contact for Client regarding the day-to-day activities of such Project and who will provide reports of progress and management of technical requirements.
      2. For each Project, Client will assign a primary point of contact ([“Client] Project Manager”) who is knowledgeable as to the scope and requirements of such Project and who is authorized by Client to deliver instructions and supervision to LDM GLOBAL for that Project.
      3. The [Client] Project Manager will make reasonable efforts to facilitate implementation or acceptance of Services as necessary for LDM GLOBAL to fulfil delivery of Services.
   6. To the extent that the terms or intent of any approved Scope of Works is inconsistent with the terms of this agreement, the terms of the approved Scope of Works will prevail.
5. THE HOSTED SOLUTION
   1. Upon the Agreement Date and thereafter during the Term, provided that any and all Fees have been paid in full, LDM Global will:
      1. Host the Hosted Solution and the Client Data inputted into and generated by the Hosted Solution; and
      2. Provide Minimum Service Levels set out in clause 6.
   2. The Client hereby acknowledges and agrees that LDM Global may use a third party provider to provide all or part of the Hosted Solution.
   3. All hosting and support of the Hosted Solution must be obtained by the Client through LDM Global.
   4. In consideration of payment by the Client to LDM Global of Fees, LDM Global grants to the Client, a non-exclusive, non-transferable licence to access its Hosted Solution service in accordance with this Agreement.
   5. Upon the Agreement Date and thereafter during the Term, provided that any and all Fees have been paid in full, LDM Global shall provide to the Client access to the Hosted Solution on the terms of this Agreement using a Client-provided internet connection and provided that the Hosted Solution may only be accessed by Authorised Client Users.
   6. The Client shall be invoiced in accordance with a Subscription Plan set out in clause 9, or on a per gigabyte and/or per user basis for use of the Hosted Solution and at the end of each calendar month.
   7. LDM Global shall determine the maximum number of Authorised Client Users who are authorised to access the Hosted Solution in that month, regardless of whether or not all of the Authorised Client Users have accessed the Hosted Solution in that month or not, and LDM Global shall invoice the Client for the maximum number of users in that month at the per unit price listed in the Schedule. If a Hosted Solution caseroom is closed part-way during the month, then the fees are still payable for that month as per this clause as if the Hosted Solution caseroom was open for the whole month.
   8. The Authorised Client Users may access and use the Hosted Solution in the manner and in accordance with this Agreement.
   9. The Client may use the Hosted Solution by means of accessing the Hosted Solution over the internet or via a direct link system for the maximum number of Authorised Client Users as advised by LDM Global in writing.
   10. The Client shall not:
       1. Use the Hosted Solution to act as a service bureau or to process or report any third party information;
       2. Delete any LDM Global Trademarks, copyrights or proprietary right notices from the Hosted Solution;
       3. Directly or indirectly modify, translate, decompile, create or attempt to create, by reverse engineering or otherwise, the object or source code of the Hosted Solution or adapt the Hosted Solution in any way or use them to create derivative works; or
       4. Have any rights in respect of the Hosted Solution except those referred to in this Agreement.
   11. The Client acknowledges and agrees that use of the Hosted Solution as permitted under this Agreement does not require the installation of the Hosted Solution on the Client’s computer systems or network. Accordingly, the Client will not receive any physical or electronic copies of the Hosted Solution, but rather will only be permitted to access the Hosted Solution through a browser or other technology as designated by LDM Global from time to time.
   12. LDM Global reserves the right to change the format or content of, the Hosted Solution and/or the Reports or update, modify or enhance the Hosted Solution and/or the Reports whether or not such changes, updates, modifications or enhancements would require changes to the Client’s Systems or the Client’s modes of operation.
   13. LDM Global shall not be responsible for providing any updates, replacements, revisions, enhancements, additions or conversions or otherwise
       maintaining the Client’s Systems.
6. SYSTEM AVAILABILITY
   1. LDM Global warrants an average monthly availability of 98%. For the calculation of the availability, downtimes will be accounted for in full minutes.
   2. If in the middle of the month the service level as defined above is not met and LDM Global is at fault for said shortfall, the Client may deduct 0.5% of their monthly Fees on the following basis:
      1. Monthly Fees include used Authorised Client User licenses leading up to and including the time of the outage;
      2. Client must report a fault within 24 hours of the service outage;
      3. LDM Global service assurance does not cover service difficulties caused by (i) scheduled downtimes for maintenance and updates; (ii) acts or omissions by the Client or end-user; (iii) behaviour of Client or end-user equipment, facilities or applications; (iv) faults in Client or end-user equipment or software; (v) damages due to external causes, e.g. vandalism, theft, terrorism, etc.; (vi) downtimes due to technical or other problems not caused by LDM Global (caused by third parties etc.); or (vii) Acts of God and any other situations beyond the control of LDM Global.
7. DURATION AND TERMINATION
   1. Termination does not relieve the Client of its obligations under this Agreement.
   2. LDM Global may terminate this Agreement forthwith if:
      1. The Client fails to rectify a breach of this Agreement within thirty (30) days after being given notice by LDM Global requiring it to do so;
      2. The Client enters any arrangement with its creditors or becomes subject to external administration or ceases to be able to pay its debts as and when they become due; or
      3. The Client ceases to carry on business.
   3. The Client may terminate this Agreement if the Hosted Solution is not available through the action or inaction of LDM Global for a period of more than seventy-two (72) hours; this clause shall not apply if the Hosted Solution is not available through the actions of the Client or a third party or as otherwise set out in clause 6.2(c).
   4. Upon the effective date of termination of this Agreement:
      1. LDM Global shall immediately cease providing access to the Hosted Solution and cease provision of the services under this Agreement;
      2. Any and all payment obligations of the Client under this Agreement shall become due immediately; and
      3. Within 30 days after such termination, each party shall return all Confidential Information in its possession at the time of termination and shall not make or retain any copies of such.
8. FEES
   1. LDM Global will render an invoice for the Fees to the Client at the end of each calendar month and/or at the end of a project, or otherwise as agreed with the Client.
      1. LDM Global bills professional services hours in increments of 15 minutes.
   2. The Invoice will be due and payable to LDM Global fifteen (15) days from the date of the invoice.
   3. The Client agrees to pay to LDM Global, in addition to the Fees, any government consumption, goods and services, value added, or other taxation payable in respect of such Fees.
   4. If the Client does not pay an invoice within fifteen (15) as required by clause 8.2, LDM Global shall be entitled to charge the Interest Rate on the overdue amount.
9. SUBSCRIPTION PLANS
   1. Subscription Plan pricing covers data volume within the Hosted Solution and Ancillary Services units up to the purchased threshold(s) during the Term.
   2. If a Subscription Plan threshold is surpassed during a Term, the Client may purchase an additional Subscription Plan as follows:
      1. The Client may purchase a new Subscription Plan of equal or greater value as per the Fee schedule. The new Subscription Plan is subject to the terms and conditions set out in this Agreement.
      2. The Client may purchase Ancillary Services on an individual, as-needed basis as per the Fee schedule.
   3. Subscription Plan services that remain unused at the end of a term of the Subscription Plan, are carried over to the next term of the Subscription
      Plan (“Carryover Services”) and automatically expire at the end of the subsequent Subscription Plan term.
   4. Carryover Services are always consumed last, after any Hosted Solution and/or Ancillary Services under the new Subscription Plan are expended. Unused Carryover Services are not redeemable for credit.
   5. Payments for the Subscription Plan can be pro-rated monthly through the course of the Subscription Plan term, in advance of the month in which the services under the Subscription Plan will be provided. If payments are pro-rated, the full Subscription Plan cost is still required by the end of the Term, even if Services purchased under the Subscription Plan are not fully expended.
   6. Notwithstanding this clause 9, in order to carry over Subscription Plan services, the Client must maintain, without lapse or interruption, at least the Annual Plan and Subscription Plan tier minimums as outlined in the Fee Schedule.
10. SUSPENSION OF SERVICE
    1. If the Client:
       1. Fails to pay any amount due to LDM Global under this Agreement; or
       2. Breaches a warranty in clause 17,
          LDM Global may suspend performance of some or all of its obligations under this Agreement, including suspension of the Hosted Solution, until the Client pays in full or rectifies such breach, as the case may be.
    2. LDM Global must supply written notice to the Client of such suspension or withdrawal of services fourteen (14) days before any such action is taken.
    3. If LDM Global suspends performance of some or all of its obligations under this Agreement, the Client must still perform all its obligations under this Agreement.
    4. LDM Global is not obliged to make available information on the Hosted Solution or otherwise held by LDM Global until the Client pays all outstanding amounts due by the Client to LDM Global.
11. LDM GLOBAL ACCESS TO CLIENT INFORMATION
    1. Subject to clause 15, LDM Global shall be entitled to review Client Information for reasons that LDM Global believes in good faith will improve the performance of the Hosted Solution.
    2. The Client shall allow LDM Global reasonable access to the Client’s premises and systems to ensure compliance with the provisions of this
       Agreement.
    3. The Client agrees to furnish LDM Global on request with such information concerning its use of the Hosted Solution as LDM Global shall reasonably request for the purposes of monitoring compliance with this Agreement.
12. CLIENT OBLIGATIONS
    1. In addition to the obligations of the Client set forth elsewhere in this Agreement, the Client shall be responsible for the following:
       1. Acquiring, installing and maintaining Client Systems. At a minimum, LDM Global recommends that Client Systems shall include a connection to the Internet with a bandwidth of 1 Mbps. The Client acknowledges that LDM Global makes no representations or warranties as to the Client Systems;
       2. Converting its data, content and business forms (or a portion thereof reasonably acceptable to both parties) to a format compatible with the Hosted Solution, except where LDM Global is contracted separately to do so;
       3. The confidentiality and use of Authorised Client Users’ User IDs, passwords, access numbers and account numbers;
       4. All electronic communications and other Client Information (“Client Information”) entered through or under Authorised Client Users’ User IDs, passwords, access numbers or account numbers. LDM Global will act as though any electronic communications it receives under Authorised Client Users’ User IDs, passwords, access numbers, and account numbers will have been sent by the Client. The Client agrees immediately to notify LDM Global if the Client becomes aware of any loss or theft or unauthorised use of any of Authorised Client Users’ User IDs, passwords, access numbers, and account numbers;
       5. The accuracy, completeness and quality of any and all Client Information. The Client shall provide Client Information in the format and manner requested by LDM Global and in accordance with the standards set by LDM Global from time to time. Any changes or amendments to Client Information shall be performed at the Client’s own cost and expense; and
       6. To ensure that the information the Client and its users transmit and receive complies with all applicable laws and regulations and the rules and regulations of LDM Global and third party providers, if applicable. The Client must at all times conform to its use of the Hosted Solution to LDM Global’s Acceptable Use Policy as set out in Appendix A, as LDM Global may issue and update from time to time.
       7. If LDM Global is informed by government authorities or other parties of inappropriate or illegal use of the Hosted Solution or other networks accessed through the Hosted Solution, or LDM Global otherwise learns of such use or has reason to believe such use may be occurring, then the Client shall cooperate in any resulting investigation by LDM Global, LDM Global or government authorities.
       8. Any government determinations shall be binding on the Client. If the Client fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, LDM Global may immediately suspend the Client’s service or access to the Hosted Solution. Further, upon notice to the Client, LDM Global may modify or suspend the Client’s service or access to the Hosted Solution (i) as necessary to comply with any law or regulation as reasonably determined by LDM Global; or (ii) if deemed reasonably necessary by LDM Global to prevent any harm to LDM Global, LDM Global and their businesses.
13. PRIVACY
    1. The parties acknowledge and agree that:
       1. LDM Global’s engagement may require the Processing of Personal Data by LDM Global on behalf of the Client;
       2. the Client shall determine the purposes for which and the manner in which Personal Data will be processed by LDM Global on behalf of the Client; and
       3. the Client shall be the Controller and LDM Global shall be the Client’s Processor in respect of all such Personal Data.
    2. Particulars of the Processing to be carried out by LDM Global on behalf of the Client under or in connection with this Agreement shall be provided by the Client to the LDM Global including the subject matter and duration of the Processing, the nature and purpose of the Processing, the type of Personal Data being Processed and the categories of Data Subjects.
    3. Where, under or in connection with this Agreement, LDM Global Processes Personal Data on behalf of the Client as the Client’s Processor, the LDM Global acknowledges that it will:
       1. comply with its obligations as a Processor under the Data Protection Laws to which LDM Global is subject;
       2. Process the Personal Data:
          1. on the written instructions of the Client and to the extent reasonably necessary for the performance by LDM Global of its obligations under this Agreement; if LDM Global is of the opinion that Processing the Personal Data in accordance with a written instruction received from the Client or in the performance of its obligations under this Agreement infringes Data Protection Laws to which either the Client or the LDM Global (in its capacity as a Processor) is subject, LDM Global shall immediately inform the Client; or
          2. as otherwise required by European Union law or individual European Union member state law to which LDM Global is subject, in which case LDM Global shall inform the Client of that legal requirement before Processing the Personal Data (unless that law, on important grounds of public interest, prohibits LDM Global from informing the Client);
       3. not disclose the Personal Data to any person except as required or permitted by this Agreement;
       4. shall keep the Personal Data confidential;
       5. implement appropriate technical and organisational measures to ensure the security of the Personal Data and prevent Personal Data Breaches;
       6. not engage another Processor to Process the Personal Data on behalf of the Client (Sub-processor) without obtaining a written agreement with the Sub-processor that imposes on the Sub-processor obligations that are the same as, the obligations imposed by this Agreement;
       7. not transfer or Process the Personal Data outside the European Economic Area, nor disclose the Personal Data to any party located outside the European Economic Area, except with the Client’s prior consent;
       8. provide such assistance and co-operation as the Client may require from time to time in relation to the Personal Data to help the Client comply with its obligations under the Data Protection Laws to which it is subject, including (without limitation) its obligations in relation to:
          1. keeping Personal Data secure;
          2. dealing with Personal Data Breaches;
          3. carrying out data protection impact assessments; and
          4. dealing with requests from Data Subjects to exercise their legal rights in relation to their Personal Data.
       9. LDM Global shall:
          1. notify the Client without undue delay after, and in any event within 24 hours of, becoming aware of a Personal Data Breach in respect of the Personal Data;
          2. at the Client’s option, permanently and securely delete or return to the Client all the Personal Data promptly on termination of the Client’s relationship with LDM Global and delete any existing copies of the Personal Data save to the extent that LDM Global is required to retain copies of the Personal Data by European Union law or individual European Union member state law to which LDM Global is subject; and
          3. make available to the Client all information necessary to demonstrate its compliance with its obligations under this Agreement.
14. PROPRIETARY RIGHTS
    1. The Client acknowledges that all rights, title and interests in and to the Hosted Solution and the Ancillary Services, including all modifications, changes and enhancements to the Hosted Solution, are and shall be the sole and exclusive property of LDM Global or its licensor. The Client hereby assigns, and shall cause its employees, agents and contractors to assign to LDM Global, all rights, title and interest in and to the Hosted Solution, including all modifications, changes and enhancements thereto.
    2. The Client acknowledges and agrees LDM Global trademarks are the exclusive property of LDM Global.
    3. Notwithstanding anything to the contrary in this Agreement or otherwise, LDM Global shall retain all right, title and interest in and to any and all ideas, concepts, know-how, development tools, methodologies, processes, procedures, technologies or algorithms (“LDM Global Know-How”) developed when providing the Hosted Solution. Nothing contained in this Agreement shall restrict LDM Global from the use of any LDM Global Know-How. LDM Global shall not be prohibited or enjoined at any time by the Client from utilising any skills or knowledge of a general nature acquired during the course of providing the Hosted Solution including information publicly known or available or that could reasonably be acquired in similar work performed for another client of LDM Global.
15. CONFIDENTIALITY
    1. The Client and/or LDM Global may have access to information that is proprietary or confidential to the other party (the “Confidential Information”).
    2. Each party shall for the benefit of the other:
       1. Hold the Confidential Information in confidence by taking reasonable measures (and at least those measures consistent with normal industry practice) to prevent unauthorised disclosure of such Confidential Information, in any form, to any third party; and
       2. Use Confidential Information only for the purposes specified in this Agreement. Each party shall:
          1. Hold the Confidential Information in confidence by taking reasonable measures (and at least those measures consistent with normal industry practice) to prevent unauthorised disclosure of such Confidential Information, in any form, to any third party (other than as permitted in accordance with this Agreement); and
          2. Use Confidential Information only for the purposes specified in this Agreement.
    3. Confidential Information shall not include information which:
       1. Is or becomes publicly known through no act or omission of the recipient and without breach of this Agreement;
       2. Is known and on record at the receiving party prior to disclosure by the disclosing party;
       3. The recipient can demonstrate with competent written proof was in the recipient’s possession prior to such access or disclosure (other than through an unauthorised disclosure);
       4. Is disclosed to the recipient by a third party having legitimate possession thereof without restriction on such disclosure;
       5. Is independently developed by the recipient without violating the proprietary rights of the disclosing party and is so documented by the recipient;
       6. Is lawfully obtained by the receiving party from a third party who is free to disclose same;
       7. Is ascertainable from other commercial sources in the marketplace; or
       8. Is disclosed on the order or reasonable request of any court of law or judicial or quasi-judicial body, provided that such disclosure is covered by a suitable protective order.
    4. Information will be transferred between the parties to the extent necessary to fulfil the Project.
    5. To the extent that such information is considered confidential, the disclosing party will so indicate the recipient party, in the case of information disclosed in documentary or other tangible form by labelling same as “Confidential” and in the case of intangible disclosures such as verbal, visual or machine readable disclosures of information by summarising same within thirty (30) days after disclosure in writing and sending the recipient party by way of confirmation the information as summarised in writing and then labelled as “Confidential”. Such information, so marked, is hereinafter referred to as “Confidential Information”. The provision of client data will have a default confidentiality status when provided for transfer to the Hosted Solution facility.
    6. All Confidential Information disclosed or transferred by either party to the other shall remain the property of the disclosing party.
16. LDM GLOBAL WARRANTIES AND EXCLUSIONS
    1. LDM Global warrants that it has the rights necessary to enter this Agreement and to grant the Client a licence to access and use the Hosted Solution.
    2. LDM Global undertakes to perform all reasonable steps to protect the confidentiality of any data including the signing of non-disclosure and confidentiality agreements where required.
    3. It is the responsibility of the Client to ensure that the standard security mechanisms and procedures employed within the Hosted Solution satisfy their own requirements and the requirements of their down-line clients. LDM Global does not guarantee the suitability or effectiveness of the security mechanisms that LDM Global or any third party provider utilises in the provision of the Hosted Solution facility in regard to the intended use by the Client.
    4. LDM Global is not responsible for the operation of the telecommunications systems utilised to connect to the Hosted Solution facility apart from the components under the direct control of LDM Global or its subcontractors.
    5. Except as otherwise expressly provided in this Agreement, all warranties, representations, promises, conditions or statements regarding the Hosted Solution or services provided under this Agreement, whether express or implied, and whether statutory or otherwise (including, without limiting generality, warranties, representations, promises, conditions and statements as to merchantability, suitability or fitness for any purpose, profitability or any other attributes or consequences of or benefits to be obtained from or in the course of using the Hosted Solution or services) are to the full extent permitted by law hereby expressly excluded.
    6. LDM Global warrants that it is an authorised distributor of the Hosted Solution and has the right and authority to grant the Client the right to use the Hosted Solution and all other rights set out in this Agreement. Without limiting the foregoing, LDM Global warrants that there are no existing restrictions or constraints on its right and authority to supply and license the Hosted Solution to the Client.
    7. Except as otherwise expressly provided in this agreement, all warranties, representations, promises, conditions or statements regarding the Hosted Solution or LDM Global’s services provided under this Agreement, whether express or implied, and whether statutory or otherwise (including, without limiting generality, warranties, representations, promises, conditions and statements as to merchantability, suitability or fitness for any purpose, profitability or any other attributes or consequences of or benefits to be obtained from or in the course of using the software or services) are to the full extent permitted by law hereby expressly excluded. No advice or information, whether oral or written, obtained by the Client from LDM Global, or any of its agents, or through or from the software or LDM Global services shall create any warranty not expressly stated in this agreement.
17. CLIENT WARRANTIES AND ACKNOWLEDGEMENTS
    1. The Client represents and warrants to LDM Global that:
       1. The Client is not insolvent;
       2. The Client Information does not infringe the intellectual property rights of any third party;
          1. The Client Information is timely, complete and accurate;
          2. The Client Information does not contain any defamatory materials or statements, obscenity, pornography, or violate any third party’s
             right of privacy or publicity;
          3. The Client will not engage in any “spamming”, or any offensive, harassing or illegal conduct; and
          4. The Client will at all times comply with LDM Global’s acceptable use policy, as set out in Appendix A.
    2. The Client expressly understands and agrees that use of the Hosted Solution and LDM Global’s services is at the Client’s sole risk. the Hosted Solution is provided “as is” without warranties of any kind.
    3. The Client acknowledges that the Hosted Solution is neither fault-tolerant nor designed, manufactured or intended for use or resale as an online control in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or weapon systems in which the failure of the Service or the Site could lead directly to death, personal injury or severe physical or environmental damage (“High Risk Activities”). Accordingly, LDM Global and its suppliers specifically disclaim any express or implied representations, commitments or warranties related to High Risk Activities. The Client shall not use the Hosted Solution in the course of any High Risk Activities and shall indemnify and hold harmless LDM Global for any and all damages, losses, liability and expenses (including reasonable legal fees) suffered by LDM Global to which LDM Global becomes subject arising out of the Client’s use of the Hosted Solution in High Risk Activities.
18. LIABILITY
    1. LDM Global is not liable if a failure to operate the Hosted Solution is the result of improper use or mismanagement by the Client, from the failure of equipment or computer software not supplied by LDM Global (including, but not limited to, any Browser or server software used by the Client or provided and installed by any third party provider involved with the delivery of the Hosted Solution) or from a computer software virus.
    2. In no event shall LDM Global be liable for any special, incidental, indirect, statutory, exemplary, punitive or consequential damages, or for any lost profits, business or revenue, loss of use or goodwill, or other lost economic advantage, arising out of this Agreement or the breach hereof regardless of legal theory and even if it knew or should have known of the possibility of such damages.
    3. LDM Global is not responsible for loss or damage to Client’s property if it occurs through no fault of LDM Lobal during forensic imaging or the
       completion of some other requested Ancillary Service.
    4. The Client shall indemnify LDM Global from, and defend and hold LDM Global harmless from and against any and all damages, losses, liability and expenses (including reasonable legal fees) suffered or incurred by any LDM Global or to which LDM Global becomes subject, arising out of or relating to any claim
       1. That the Client has breached any of its representations or warranties hereunder;
       2. Relating to any personal injury or property damage to any Client employee, contractor or representative or other Client designee;
       3. Relating to claims by the Client’s suppliers, the Client’s vendor and third party providers; and
       4. Any other claims or damages arising from the Client’s business, resources or services or use of the Hosted Solution.
    5. The Client’s liability under clause 18.4 shall be reduced proportionally to the extent that any unlawful, wrongful, wilful or negligent act or omission of LDM Global caused or contributed to the liability or loss.
    6. The Client is required to comply with all LDM Global security procedures, as modified by LDM Global from time to time, in order to maximise the security of the Hosted Solution. Only individuals identified as “Authorised Client Users” shall be permitted to access the Hosted Solution or request service, either by telephone or email. For good cause, LDM Global may suspend the right of any Authorised Client Representative or other person to access the Hosted Solution. LDM Global will assist in site and/or network security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so.
    7. The Client acknowledges that LDM Global cannot control the flow of data to or from the Hosted Solution, Client Systems or other portions of the internet. Such flow depends in large part of the performance of the Client, Client Systems and services provided or controlled by third parties. At times, actions or inactions caused by the Client or third parties can produce situations in which connections to the Client Systems or Internet (or portions thereof) may be impaired or disrupted. Although LDM Global will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, LDM Global cannot guarantee that they will not occur. Accordingly, LDM Global disclaims any and all liability resulting from or related to such events.
    8. The Client acknowledges that, LDM Global’s liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited in the aggregate to:
       1. for a Hosted Solution, a maximum of the equivalent of the Initial Term or the total Term for the Hosted Solution, whichever is the lesser; and/or
       2. for Ancillary Services, either a resupply of the Ancillary Services or an amount equivalent to the supply of the Ancillary Services.
    9. LDM Global shall be deemed to have been discharged from all liability in respect of the services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the Term, or if no date is specified, on the expiration of 3 years from the completion of the services.
19. INSURANCE
    1. LDM Global shall maintain professional liability insurance to the extent of $1 million (USD) for any one claim and $2 million (USD) in the aggregate.
20. NOTICES
    1. Any notice or other communication given or made in relation to this Agreement must be in writing and:
       1. Signed by the party giving or making it or that party’s authorised representative (either LDM Global’s Representative or the Client’s
          Representative as relevant); and
       2. Left at the address specified for the party’s authorised representative, sent by post to the address or to email address specified for the
          party’s representative (either LDM Global’s Representative or the Client’s Representative as relevant).
    2. A party may change its address for the purpose of service of notices by giving notice of that change to each other party.
    3. Proof of posting or of dispatch of facsimile is proof of receipt.
    4. Receipt of correspondence will be deemed to have occurred within:
       1. Three (3) business days after despatch for mail within the same country;
       2. Ten (10) business days after despatch for international mail; and
       3. One (1) business day after despatch for email.
21. DISPUTE RESOLUTION
    1. If a dispute arises between the parties in respect of or in connection with this Agreement (including the validity, breach or termination of it) the parties must, without prejudice to any other right or entitlement they may have, explore whether the dispute can be resolved by agreement between them using informal dispute resolution techniques such as negotiation, mediation, independent expert appraisal or any other alternative dispute resolution technique. The rules governing any such technique adopted shall be as agreed between the parties or, if no agreement is reached, as selected by the International Centre for Dispute Resolution. The costs of such dispute resolution must be borne by the parties in proportions determined in the course of the dispute resolution, unless otherwise agreed.
22. GOVERNING LAW
    1. This Agreement is governed by the Jurisdiction.
23. GENERAL
    1. Rights Cumulative: The rights and remedies contained in this document are cumulative and are not exclusive of any rights and remedies provided by law.
    2. No Waiver: The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right to insist on performance of that obligation or to claim damages unless that party acknowledges in writing that the failure is a waiver; and at any other time to insist on performance of that or any other obligation under this Agreement of the other party.
    3. Assignment: The Client may not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of its rights or obligations under this Agreement without the prior written consent from LDM Global. An assignment in contravention of this clause shall be void.
    4. Independent Contractors: The parties are independent contractors and neither party is the legal representative, agent, joint venturer, partner or employee of the other party for any purpose whatsoever. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty, whether express or implied, on behalf of or to bind the other party in any respect.
    5. Survival: Upon any termination of this Agreement, clauses 2, 8, 10, 12, 14, 15, 16, 17, 18, 19.1, 21, 22 and 23 shall remain in full force and effect.
    6. Force Majeure: LDM Global shall not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to act or war, acts of God, earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, governmental act, terrorism, acts of third parties, failures of third party software or equipment, power or electrical failures and Internet and connectivity failures, pandemic, disease outbreak, enforced quarantine, a national or regional emergency, labor slowdowns, industrial disturbances.
    7. Non-solicitation: The parties agree not to solicit for employment or enter into consultant relationships with employees or consultants of each other party during the Term and 12 months after the termination of this Agreement.
    8. Delay: In the event the performance by LDM Global requires or is contingent upon the Client’s performance under this Agreement, and the Client delays or withholds such performance beyond the agreed-upon time period (or beyond five days, if a time period is not specified), the time for the performance by LDM Global shall be extended.
    9. Non-exclusivity: Each party recognises that LDM Global personnel providing services to the Client under this Agreement may perform similar services for others and this Agreement shall not prevent LDM Global from using the personnel provided to the Client under this Agreement for such purposes. Nothing in this Agreement shall impair LDM Global’s right to acquire, license or develop for itself or others or have others develop for LDM Global similar services as contemplated by this Agreement. Nothing shall prevent LDM Global from using contractors or third parties to provide all or part of the Hosted Solution.
    10. Severability: In the event any provision of this Agreement shall not be enforceable, the remainder of this Agreement shall remain in full force and effect. No waiver of any right by LDM Global under this Agreement shall be effective unless given in writing by an authorised representative of LDM Global. No waiver by LDM Global of any right shall be deemed to be a waiver of any other right of LDM Global arising under this Agreement.
    11. Entire Agreement: This Agreement and any attachments, schedules or appendices thereto, constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes any and all other agreements, written or oral, that the parties heretofore may have had with respect to the subject matter herein.
    12. Counterparts: This Agreement may be signed in any one or more counterparts, each of which shall be deemed to be an original and all of which, when taken together, constitute one and the same instrument.

Appendix A

Acceptable Use Policy

1. LDM Global provides the Hosted Solution to a wide variety of Clients engaged in a diversity of activities.
2. It is important for LDM Global’s Clients to be fully informed about their responsibilities with respect to use of the Hosted Solution.
3. The purpose of this Acceptable Use Policy is to define those responsibilities in plain English for Clients and their end users.
4. This Policy recognises the fundamental fact that no one owns or controls the internet. LDM Global does not have the ability to monitor and control all of the activities of our Clients, and we do not intend to actively screen, review, censor, edit or take responsibility for the activities or content of our Clients. Our Clients, not LDM Global, are solely responsible for and assume all liability relating to their internet activities, including:
   1. All aspects of the Client’s business;
   2. All technology, content and data provided by or through a Client for use with the Hosted Solution;
   3. All results obtained from using the Hosted Solution;
   4. Compliance with all applicable laws and governmental regulations regarding the Client’s business or use of the Hosted Solution;
   5. Use of the Hosted Solution by the Client’s end users;
   6. Compliance with this Acceptable Use Policy by the Client and the Client’s end users.
5. Activities conducted on the internet are subject to many of the same laws and regulations applicable to the offline environment. In addition, a Client’s activities on the internet may affect other internet users, LDM Global, our suppliers, or the safety or security of the Hosted Solution. Consequently, our Clients must exercise a high degree of judgment and responsibility with respect to their use of the Hosted Solution, including the responsibility to comply with this Acceptable Use Policy.
6. Clients will violate this Policy when they or their affiliates engage in any of the following activities:
   1. Using the Hosted Solution to violate any law, statute, ordinance or regulation governing the Client’s business or activities, including without limitation the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, child pornography, obscenity, trade in firearms, spamming, privacy, data transfer, and telecommunications;
   2. Using the Hosted Solution in a manner which presents a material security risk or will interfere materially with the continued operation of a data centre or the Hosted Solution;
   3. Using the Hosted Solution in a manner that infringes another’s copyrights, patents, trademarks, service marks, trade names, trade secrets or other intellectual property rights or rights of publicity, including failing to obtain all required permissions to receive, upload, download, display, distribute, or execute programs or perform other works or derivative works protected by intellectual property laws or removing or altering applicable copyright, trademark or patent notices;
   4. Using the Hosted Solution in a tortious manner, including without limitation engaging in libel, defamation, harassment, misappropriation of trade secrets, intentional misrepresentation or fraud, or publication of private information without the permission of the person(s) involved;
   5. Introducing viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
   6. Intentionally omitting, deleting, forging or misrepresenting transmission information, including headers, return addressing information and IP addresses, in violation of applicable law; using the Hosted Solution to gain illegal or unauthorised access to other computers or networks through hacking or other means; assisting in or permitting any persons to engage in any of the activities described above.
7. Upon becoming aware of harmful activity, LDM Global reserves the right to take remedial action, up to and including termination of the Client’s use of the Hosted Solution. We anticipate that our Clients will cooperate with us in any reasonable corrective action that we deem necessary to ensure compliance or prevent further harm. Failure to cooperate with such corrective or preventive measures is a violation of this Policy.
8. By using the Hosted Solution our Clients agree to comply with this Policy and also agree to indemnify LDM Global against any claims by third parties arising from violation of this Policy. LDM Global reserves the right to make changes to this Acceptable Use Policy at any time, and any changes will be effective immediately.
9. Continued use of the Hosted Solution following notification of any changes shall constitute acceptance of the changes.

Appendix B

Included Services – Hosted Solution:

1. Online Storage of Data – Services and facilities for online storage and standard maintenance of electronically stored information (“ESI”). This includes the cumulative volume of Work-In-Process, Active Data, Near-line Data, Archive Data, Backup Hosting Data, Backup Processing Data, Backup Systems and Client Data stored on servers managed by LDM Global.
2. Hosting Platform for Review – Hosting of specified ESI in a web-based or Citrix based review platform agreed to by both Parties as of the Effective Date of this Agreement. LDM Global provides hardware, infrastructure and personnel necessary to support the review platform in a secure hosting environment, subject to LDM Global’s standard maintenance schedule and protocol.
3. Review User Licenses – A grant to Client for each Authorized User (as defined below) and license to use the chosen review platform. LDM Global will provide the hosting services with respect to Client’s use of review platform. Each Authorized User license requested by Client over and above the specified license allotment included in the Annual Plan shall be subject to the fees set forth in the Fees Schedule.
   

   Appendix C

   Ancillary Services

   1. Infrastructure and Environment Customization Services – These services include but are not limited to: development of custom software scripts; non-standard event handlers; apps within hosted review platforms; Client-requested infrastructure upgrades and/or changes; and non-standard environment management. Client and LDM Global agree that LDM Global will provide best efforts to accommodate such requests, and LDM Global will provide, and Client will approve in writing in advance of LDM Global undertaking such work, an estimate and budget of time, costs, and dependencies for such work. LDM Global shall not begin any such work without such approval.
   2. Litigation Support and Analytics Management – Implementation, support, and customization and administration of review databases; loading of data to review databases; development of workflows for Technology Assisted Review; analysis conversion and quality control of third party data; manual data filtering, including complex searching and tagging; development and implementation of event handlers; and preparation and quality control in support of productions. The LDM Global litigation support manager for the applicable Project will coordinate efforts between Client and the LDM Global litigation support team to ensure appropriate resources are assigned and requirements are clearly communicated.
   3. Data Reduction Processing and Native Export – Receiving and:
      1. Unpacking container files such as ZIP, RAR, BAK; and
      2. deNIST the collection and separate known system and software files from likely user-created files, and identify duplicates in the collection.

   Preparation of ESI for data hosting. Preparation of the ESI for review by processing, extracting full text and metadata to explicit fields, and building a load file for native review per agreed upon standards. Application of Optical Character Recognition (OCR) technology, to scanned pages of documents or to graphics ESI files for which no searchable text is available.

4. Production Processing – Processing and exporting of ESI, database records, and TIFF images on a per GB basis for use as production in response to discovery requests. Services may include creation of copy sets on disk or hard drive.
5. Paper Document Services – Services relating the electronic capture and reproduction of paper documents. Services may include scanning, logical document determination, disassembly and reassembly of documents, resizing, reproduction, blowback, numbering, subjective or bibliographic coding, endorsement and branding of images, and creation of media.
6. Managed document review services – Outsourced document review services to include reviewing and coding documents for privilege, relevancy, issue tags and more as instructed.
7. Digital Forensic Examination – Forensic analysis and reporting services for data acquired from computer hard drives, mobile devices (cell phones, smart phones and tablets), external devices and other electronic media. LDM Global’s analysis will consist of specific tasks agreed upon with Client. Examples of computer activities analyzed are: Internet usage (active and deleted), access of files and other resources locally and on the network, deleted file occurrences and recovery, USB device usage, CD/DVD burning, cloud storage access, and web based email usage. LDM Global will report findings, and, as requested by Client, assist with affidavit preparation and other documentation necessary for court proceedings, participate in depositions and provide courtroom testimony. Rates apply per hour for consulting and a separate rate per hour for testimony and preparation of testimony.
8. Consulting and Expert Testimony – Generate expert reports, affidavits, deposition testimony and/or trial testimony on findings from computer forensic examination. Provide advice, documentation, and testimony on aspects of eDiscovery identification, preservation, collection, search, analysis, processing, review and production. LDM Global will provide assistance with meet-and-confer, best practices, defensibility, proportionality, cost and burden, cost shifting, and accessibility. Rates apply per hour for consulting and a separate rate per hour for testimony and preparation of testimony.
9. Preservation of Computer Media – Services and facilities for storage, preservation and tracking of computer media (including without limitation, computing devices, hard drives, network servers, cell phones, diskettes, CD-ROM disk, magnetic tapes, ZIP drives, JAZ drives, and other storage media that Client or its clients want to preserve or on which may be stored original ESI or items later to be used as evidence.
10. Advanced Analytics – A specified volume allotment of Analytics, or as-needed volume, may be purchased. Application of Analytics workflows may be performed by LDM Global at Client’s request as an hourly support Service.
11. Data Archiving – Archival of Client hosted data to offline storage on hard disk drive. Client may store more than one database per hard drive, as space permits. Online hosting and user licenses for such database will discontinue at the end of the calendar month during which archiving is requested in writing. The process of archiving data or restoring data is an hourly litigation support service function.
12. Travel, Shipping, and Other Expenses – LDM Global will invoice Client and Client agrees to pay for the actual cost of travel, ground expenses, and shipping that are incurred on behalf of Client at Client’s request, provided that LDM Global has complied with any and all travel, expense, shipping and other reimbursement policies provided by Client to LDM Global, policies shall be provided to LDM Global prior to the first engagement of LDM Global services.