CHOICE IP TERMS AND CONDITIONS

ChoiceIP Inc. (together with its affiliates, “CIP”, “us”, “our” or “we”) would like to thank you (“Customer” or “you”) for engaging us to carry out the services that you’ve commissioned under each CIP Order Form and/or other forms of documented communication that we’ve exchanged with you (e.g., email confirmation).  The following binding terms and conditions, along with any other document(s) incorporated herein by reference (collectively, the “Agreement”) govern the services that CIP provides.

1. Services. Subject to your compliance with the terms and conditions contained in this Agreement, CIP will provide you with the services that you’ve commissioned from CIP (the “Services”). Pursuant to Section 2.2 below, CIP’s Services are designed to assist with you with managing intellectual property filings, or if you’re a law firm, on behalf of your client(s) which you’ve disclosed to CIP.  If you wish to order new or additional services of CIP, you may do so in the same manner that you commissioned the prior Services, unless CIP shall implement and require its customers to follow a different process.  CIP will not be obligated to carry out the services you’ve requested until such time as CIP confirms acceptance in writing via an order form or otherwise (email being an acceptable form of writing for purposes of this Agreement).

2. Disclaimer of Attorney-Customer Relationship.

2.1 The services generally offered by CIP relate to assisting CIP’s customers with the coordination and protection of their intellectual property patent filings (collectively, the “Patent Filings”), which typically covers PCT National Phase filings, European validations, direct filings, design application filings, related translations and associated tasks.  Among the services offered by CIP in respect of the foregoing, CIP will (without limitation): (i) interface with local patent attorneys/agents on a customer’s behalf who will carry out and oversee the actual filings, (ii) arrange for translations of a customer’s patent application as and when required in connection with any filing, as applicable, and (iii) manage the remittance of filing and professional fees for each filing.  Accordingly, none of the foregoing services should be construed as the practice of law in any of the jurisdictions in which CIP operates.

2.2 CIP (i) is not a law firm; (ii) does not perform legal services that an attorney or patent agent performs; and (iii) is not permitted to engage in the practice of law, including without limitation providing any kind of legal opinion or otherwise advising on a customer’s legal rights, defenses or strategies. You hereby acknowledge, understand and agree that CIP is not, under any circumstances, your attorney, patent agent or legal representative in any way. No attorney-client relationship between CIP and you (and/or any of your clients if you are a law firm) is created by using our Services. All information you provide us, while protected as expressly provided below, is not protected by attorney-client privilege nor is it deemed attorney work product.

2.3 Any attorney-client relationship formalized between you and any Service Provider (as defined below) is solely between you and such Service Provider, and not between CIP and you. If you choose to initiate a relationship with a Service Provider that we’ve introduced to you, you do so at your sole discretion. To the extent we relay or transmit guidance communicated to us by a Service Provider whom you’ve engaged, we do so as a conduit between the Service Provider and you, and merely as a convenience.

2.4 To the fullest extent legally and ethically permissible, you have determined to, and hereby confirm that you: (i) waive any actual or potential conflicts which may be presented or otherwise occur as a result of this engagement; and (ii) consent to CIP’s engagement now or in the future of other present or future customers on any other matter, whether or not on a basis adverse to you or any of your affiliates (“Permitted Adverse Representation”); provided, that, any such engagement does not consist of an actual litigation proceeding commenced directly against you and/or any of your affiliates, in which CIP may be involved.

3. No Performance Warranty. You acknowledge that we have made no guarantees as to the outcome or results to be achieved in connection with any Services we undertake on your behalf.  The foregoing notwithstanding, if is determined that any translation(s) commissioned by CIP contains a significant quantity of errors or omissions whereby a Service Provider informs CIP that such translation(s) may adversely affect one or more of Customer’s filings, CIP will commission a new translation at its own expense.  The foregoing summarizes the totality of remedies available to Customer arising from any deficiencies in translations arranged by CIP on your behalf.

4. Customer Documents. We will maintain any documents you furnish us in our customer file (or files).  At the conclusion of a matter (or earlier, if appropriate), it is your obligation to advise us as to which, if any, of the documents in our files you wish us to return to you. We will retain any remaining documents in our files for a reasonable period of time and in accordance with applicable law, and eventually destroy them in accordance with our record retention program then in effect.

5. Customer Cooperation. In order to enable us to effectively render the Services contemplated herein, you agree to disclose fully and accurately all facts related to the matters that we undertake on your behalf, and to keep us apprised of all developments relating to same. You agree to cooperate fully with us and with those Service Providers that render Services on your behalf.

6. Service Providers. Pursuant to Section 2.2 hereof, Patent Filings managed by CIP will require the assistance of licensed patent attorneys and/or patent agents (each, a “Service Provider”).  In connection with such referrals, you hereby acknowledge and agree that: (i) CIP referrals are offered to customers merely as a convenience and not as an endorsement, and you are always permitted to request a different Service Provider within our network or engage one of your own choosing; (ii) if you wish to engage a Service Provider referred by CIP, you will be required to engage each Service Provider directly, and as such, any attorney/agent-customer relationship formed by you and any Service Provider is between you and such Service Provider and not between CIP and you; (iii) you expressly authorize us to communicate with any Service Provider that you engage to the extent required for CIP to provide the Services; and (iv) Service Providers, and not CIP, are solely and directly responsible for the work product they provide, and CIP disclaims all responsibility therefor.  In addition to the foregoing, you acknowledge and agree that any Services commissioned from CIP shall not be redirected to any Service Provider sourced by CIP without CIP’s prior written consent, and if you shall breach the foregoing, CIP shall remain be entitled to the full amount of fees previously approved by you for such Services.

7. Payment for Services.

7.1 All fees and costs for Services that CIP renders shall be payable on Net 30-day terms following your receipt of a detailed invoice for the Services rendered by CIP during the period covered in the invoice.  Invoices will only be sent via email to the email that you designate.  Except as provided in Section 11 below, all fees paid to CIP are non-refundable. All fees and other amounts due under this Agreement are stated in and are payable in either U.S. dollars or Euros, as we shall mutually agree.

7.2 Any late payments shall incur a late payment fee equal to 1.5% per month, or the maximum amount allowable by law, whichever is lower. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments. In addition, if CIP elects to pursue collections to recover the fees that are due and owing by Customer, Customer will be responsible for paying all collection fees assessed by any third-party collection agency.

7.3 Your obligation to pay the fees due and owing to CIP are not contingent on you receiving payment from your client(s) or any third party.  The fees incurred by CIP are absolute and unconditional and may only be waived or otherwise deferred with the express prior written consent of CIP.

7.4 CIP reserves the right to change any and all fees on thirty (30) days prior written notice to Customer.

7.5 Customer shall reimburse CIP for reasonable and necessary costs and expenses (exclusive of normal commutation) incurred by CIP in connection with any of the Services rendered pursuant to this Agreement.  Without limiting the generality of the foregoing, the costs associated with any translations commissioned by CIP shall constitute a reimbursable expense unless both you and we expressly agree otherwise in writing.  Notwithstanding the foregoing, CIP reserves the right to arrange for Customer to be billed directly pursuant to retainers in which payment terms remain strictly between the Service Provider (or other vendor(s)) and you.  CIP will not be responsible for payment of such services rendered if you are billed directly.  It is important to note that the prompt payment of these charges to Service Providers or other vendors is essential to be able to provide timely and efficient service to you in the future, with the assistance of such third parties.

7.6 In addition to our right to charge interest on unpaid fees, if the fees that we invoice are not paid in accordance with the payment terms set forth in Section 7.1, we reserve the right to suspend or discontinue our Services immediately and without notice.

8. Confidentiality. CIP agrees not to use any of Customer’s Confidential Information for any purpose, other than to enforce its rights and perform its obligations hereunder.   Without limitation of the foregoing, CIP agrees during the term of this Agreement and thereafter to hold such Confidential Information in strict confidence, not to disclose it to third parties or to use it in any way, commercially or otherwise, except as otherwise expressly authorized by this Agreement and/or as approved by you in advance.  We agree to limit the disclosure of the Confidential Information to our employees, consultants (e.g., translators, filing firms, Service Providers, etc.), affiliates, agents and subcontractors, who have a “need to know” in order to perform its obligations under this Agreement and who: (i) have been advised of the confidential nature thereof and (ii) are parties to written agreements no less restrictive than this Section 8 as to the non-disclosure and non-use of such Confidential Information.  In the event that we receive a request by valid deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process to disclose any of the Confidential Information, we will undertake to provide you with prompt written notice of the existence, terms and circumstances of such request so that a protective order or other appropriate remedy may be sought and/or compliance with the terms of this Agreement may be waived.  In the event that such protective order or other remedy is not obtained prior to the date we are legally required to comply with such request, or that you waive compliance with the provisions hereof, we shall be authorized to disclose the subject Confidential Information without any liability to you.  For purposes of this Agreement, your “Confidential Information” shall include documentation that you make available to us and is either marked as confidential or proprietary.

9. Warranties. Each party warrants to the other that: (i) it has the power and authority to enter into and perform its obligations under this Agreement that is consummated by the parties from time to time, and (ii) it will comply with all local, state and federal laws, ordinances, regulations and orders with respect to this Agreement.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9 AND/OR ELSEWHERE HEREUNDER, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET OUT HEREIN THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”.

10. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES, LOSS OF USE, DATA, BUSINESS OR PROFITS, NOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR ANY DELIVERABLES PROVIDED HEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR FEES THAT CUSTOMER MAY OWE TO CIP, EACH PARTY’S TOTAL LIABILITY TO THE OTHER WILL NOT EXCEED THE AMOUNTS PREVIOUSLY PAID TO CIP BY CUSTOMER FOR THE SERVICES RENDERED UNDER THIS AGREEMENT.

11. Term; Termination.

11.1 This Agreement shall become effective immediately following your confirmation of the Services commissioned from CIP.

11.2 So long as you (or your customer is) receiving Services from CIP, this Agreement will remain in effect.  Accordingly, this Agreement will only terminate upon the termination/cessation of the Services you’ve requested from CIP, save those provisions which expressly survive any termination.

11.3 From the time that you’ve commissioned services from CIP, you may terminate such services for any reason on thirty (30) days prior written notice.  We have the same right to terminate upon giving you reasonable written notice (which shall not be less than five (5) business days) so that suitable arrangements can be made by you to obtain alternative services.  Among the reasons for which we may terminate this Agreement are: (1) nonpayment of our fees, charges or costs; (2) the Customer’s failure or refusal to be forthright, cooperative or supportive of our efforts; or (3) the Customer’s misrepresentation of, or failure or refusal to disclose material facts that CIP deems necessary to e render the Services.  If you shall expressly request so in writing, following the termination of this Agreement for any reason other than non-payment, we will continue to provide the Services for a reasonable period of time but in no event longer than thirty (30) days following the effective date of termination. We will be entitled to be paid for all Services rendered and other charges accrued on your behalf through the date of our withdrawal.  Refunds will only be issued from CIP on a pro-rata basis for any unused, pre-paid fees paid by Customer to CIP.

11.4 Notwithstanding any termination of this Agreement, the following provisions shall survive: Section 2 (Attorney-Customer Relationship), Section 3 (No Performance Warranty), Section 4 (Customer Documents), Section 7 (Payment for Services), Section 8 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Term; Termination), Section 12 (Notice), and Section 13 (Miscellaneous).

12. Notice. All notices, consents and other communications required or permitted to be given under this Agreement will be sent via email. In the case of notices that CIP will send to Customer, notices should be sent to the designated email address identified on your order form, statement of work or as you’ve otherwise supplied to us.

13. Miscellaneous. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, pandemics, acts of God or governmental action.  The affected party shall give prompt written notice to the other party, stating the period of time the force majeure issue is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such force majeure issue.  No force majeure event shall excuse or otherwise release you of your payment obligations pursuant to this Agreement, whether accrued or otherwise.  Your use of CIP’s Services shall not be construed as creating a partnership, employment, agency or joint venture relationship between CIP and you. This Agreement will be governed by the laws of the State of New York, except for its conflict of laws principles and will be exclusively adjudicated in New York, NY.   Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.  Neither party may assign this Agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, this Agreement may be freely assigned by CIP without the prior written consent of Customer under the following circumstances: (i) to any of its affiliates, or (ii) in the event of a Change of Control. Any assignment in violation of this provision will be invalid. This Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns. “Change of Control” shall mean the consummation of: (a) a reorganization, consolidation, merger, acquisition or sale or other disposition of substantially all of the assets of a Party; or (b) a transfer of more than fifty percent (50%) of the voting rights of a party. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. This Agreement, together with any order form or statement of work, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.  CIP reserves the right to amend the terms of this Agreement, and such updated terms will be posted on the CIP website or otherwise sent to Customer via email, at which point such amended terms will go into effect and be binding on both CIP and you. If any provision of this Agreement is held to be invalid or unenforceable, the remainder will remain in full force and effect.

Last Updated: September 2020