[Last Updated: June 2022]
[Last Updated: April 2022]
Azami Global Inc., together with its affiliates, including without limitation Metrics Legal, Inc., Choice IP, Inc., Optimal IP Translations, Ltd. and Gal Tech IP and Legal, Ltd. (collectively, “Azami”, “us”, “our” or “we”) would like to thank you and any company or firm you may represent (“you” or “your”) for engaging us to carry out the suite of Azami patent and trademark search and filing services, related annuity and translation services and associated tasks, including without limitation those set forth at www.azamiglobal.com (the “Services”) that you’ve commissioned under each Azami proposal, purchase order, order form, email confirmation and/or other forms of documented communication that we’ve exchanged with you (each such written communication, an “Order Form”). The following binding terms of service, along with any other document(s) incorporated herein by reference, including without limitation all Order Forms and/or Client Agreements between Azami and you (collectively, this “Agreement”) govern the Services that Azami provides.
1. Services. Subject to your compliance with the terms and conditions contained in this Agreement, Azami will provide you with the Services. Pursuant to Section 2.2 below, Azami’s Services are designed to assist with you with managing intellectual property filings, renewals and other related matters, or if you’re a law firm, on behalf of your client(s), each of which you’ve previously disclosed to Azami (each, your “Client”). If you wish to order new or additional services of Azami, you may do so via a Client Agreement and/or new Order Form, in the same manner that you commissioned the prior Services, unless Azami shall implement and require you and its other customers to follow a different process. Azami will not be obligated to carry out the additional Services you’ve requested until such time as Azami confirms acceptance in writing via a Client Agreement and/or Order Form (email being an acceptable form of writing for purposes of this Agreement).
2. Disclaimer of Attorney-Customer Relationship.
2.1 Pursuant to the Services, Azami interfaces with local patent attorneys, patent agents and others on your behalf. However, none of the Services should be construed as the practice of law in any jurisdiction. For the avoidance of doubt you understand and agree that in no way does Azami engage in the practice of law.
2.2 Without limiting the generality of the foregoing, Azami (i) is not a law firm; (ii) does not perform services that an attorney or patent agent performs; and (iii) is not permitted or licensed to engage in the practice of law, including without limitation providing any kind of legal opinion or otherwise advising on an Azami customer’s legal rights, defenses or strategies. You hereby acknowledge, understand and agree that Azami is not, under any circumstances, your attorney, patent agent or legal representative in any way. No attorney-client relationship between Azami 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.
2.4 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 your engagement of Azami; and (ii) consent to Azami’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. You understand, acknowledge and agree that the foregoing waiver and consent is necessary for the ongoing performance of the Services by Azami.
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 it is determined that any translation(s) commissioned by Azami contains a significant quantity of errors or omissions whereby a Service Provider informs Azami that such translation(s) may adversely affect one or more of your Patent Filings, Azami will commission a new translation at its own expense. The foregoing summarizes the totality of remedies available to you arising from any deficiencies in translations arranged by Azami on your behalf.
4. Your Documents and Property. We will maintain any documents you furnish us in your customer file(s) that we establish for you. 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 your 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, including without limitation pursuant to our GDPR compliance policy, and eventually destroy them in accordance with our record retention program then in effect. You hereby grant Azami a limited, worldwide, royalty-free, non-exclusive and fully sublicensable right and license to reproduce, modify, adapt, and use any and all materials, data and/or information you provide to Azami during the term of this Agreement, including without limitation Confidential Information (as defined below) and personal data/personal information (collectively, your “Property”), solely in furtherance of Azami’s provision of the Services to you. You warrant that the holder of any worldwide intellectual property right, including moral rights, in your Property has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
5. Your 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 Azami may require the assistance of licensed patent attorneys and/or patent agents (each, a “Service Provider”). In connection with any such referrals, you hereby acknowledge and agree that: (i) Azami 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 Azami, 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 Azami and you; (iii) you expressly authorize us to communicate with any Service Provider that you engage to the extent required for Azami to provide the Services; and (iv) Service Providers, and not Azami, are solely and directly responsible for the work product they provide, and Azami disclaims all responsibility therefor. In addition to the foregoing, you acknowledge and agree that any Services commissioned from Azami shall not be redirected to any Service Provider sourced by Azami without Azami’s prior written consent, and if you shall breach the foregoing, Azami shall remain be entitled to the full amount of fees previously approved by you for such Services.
7. Payment for Services.
7.1 Unless otherwise set forth on a Client Agreement and/or Order Form, all fees and costs for Services that Azami renders shall be payable on Net 30-day terms following your receipt of a detailed invoice for the Services rendered by Azami during the period covered in the invoice. Invoices will only be sent via email to the email address that you designate, and all invoicing instruction must be provided by you prior to Services being provided. Except as provided in Section 11 below, all fees paid to Azami are non-refundable. Unless otherwise mutually agreed in writing via a Client Agreement and/or Order Form (email to suffice), 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 Azami elects to pursue collections to recover the fees that are due and owing by you, you 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 Azami are not contingent on you receiving payment from your Client(s) or any other third party. The fees incurred by Azami are absolute and unconditional and may only be waived or otherwise deferred with the express prior written consent of Azami.
7.4 Azami reserves the right to change any and all fees on thirty (30) days prior written notice to you.
7.5 You shall reimburse Azami for reasonable and necessary costs and expenses (exclusive of normal commutation) incurred by Azami 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 Azami shall constitute a reimbursable expense unless both you and we expressly agree otherwise in writing. Notwithstanding the foregoing, Azami reserves the right to arrange for you to be billed directly pursuant to retainers in which payment terms remain strictly between the Service Provider (or other vendor(s)) and you. Azami 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.
7.7 If you are required to deduct and remit taxes on any fees due Azami, you agree to gross up such fees to ensure that Azami receives the same fees it would have otherwise received had no withholdings or other deductions been taken therefrom.
8. Confidentiality; Privacy.
(a) Azami agrees during the term of this Agreement to (i) hold your Confidential Information in strict confidence; (ii) 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; and (iii) 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. 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 the extent legally permitted, to provide you with 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 mean all information or documentation that you make available to us and is either marked or designated 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 applicable laws 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”. Moreover, Azami shall not be liable for any amounts, loss, damage or expenses you sustain in connection with any claim resulting or arising from a matter in which: (i) your instructions are verbal, contradictory, incomplete, unclear, inaccurate and/or not timely; (ii) you provide Azami with written instructions that Azami has not confirmed; (iii) you do not adhere to relevant deadlines provided to you by any Service Provider or us; or (iv) you send Azami information in an unsecure manner (electronically or via unregistered post). In no event shall Azami be responsible for any loss, damage or expenses you sustain arising as a result of, or in connection with, any verbal instructions, unconfirmed written instructions or contradictory instructions provided by you to Azami.
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 YOU MAY OWE TO AZAMI, EACH PARTY’S TOTAL LIABILITY TO THE OTHER WILL NOT EXCEED THE AMOUNTS PREVIOUSLY PAID TO AZAMI BY YOU FOR THE SERVICES RENDERED BY AZAMI WITH RESPECT TO THE FILING UNDERLYING SUCH CLAIM.
11. Term; Termination.
11.1 This Agreement shall become effective immediately following your email or other confirmation of the Services commissioned from Azami via a Client Agreement and/or Order Form.
11.2 So long as you (or your Client is) receiving Services from Azami, this Agreement will remain in effect. Accordingly, this Agreement will only terminate upon the termination/cessation of the Services you’ve requested from Azami, save those provisions which expressly survive any termination.
11.3 Unless otherwise set forth in writing between Azami and You, You may terminate Services under any Client Agreement and/or Order Form for any reason on thirty (30) days prior written notice. Without limiting the generality of Section 7.6, we may terminate Services under any Client Agreement and/or Order Form for any reason 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. 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. In the event of termination of our Services for any reason whatsoever, we will be entitled to be paid for all Services so rendered and other charges accrued on your behalf through the date of our cessation of provision of the Services. Refunds will only be issued from Azami on a pro-rata basis for any unused, pre-paid fees paid by you to Azami.
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 (Your Documents and Property), Section 7 (Payment for Services), Section 8 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Term; Termination), Section 12 (Notice), Section 13 (Governing Law; Dispute Resolution; Arbitration; Jurisdiction), and Section 14 (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 Azami will send to you, notices should be sent to the designated email address identified on your Client Agreement and/or Order Form, or as you have otherwise supplied to us.
13. Governing Law; Dispute Resolution; Arbitration. PLEASE READ THE FOLLOWING CLAUSES CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. The laws of the State of New York. shall govern this Agreement. While we will make reasonable efforts to resolve any disagreements you may have with Azami, if these efforts fail you agree that all claims, disputes or controversies against Azami arising out of this Agreement, or the purchase of any Services (“Claims”) are subject to fixed and binding arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing an arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing an arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and Azami agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. You may obtain copies of the current rules, and forms and instructions for initiating an arbitration by contacting the American Arbitration Association by using the following contact information — American Arbitration Association 800-778-7879 (toll-free) Website: www.adr.org. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your Confidential Information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator’s award is final and binding on the parties unless we or you appeal it in writing to the arbitration firm within fifteen (15) days of notice of the award. The appeal must request a new arbitration before a panel of three neutral arbitrators designated by the American Arbitration Association. An award by a panel is final and binding on the parties after fifteen (15) days has passed. Any Claim you have must be commenced within one (1) year after the date the Claim arises. As noted above, you and Azami hereby voluntarily and knowingly waive any right either may have to a jury trial. We will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is transferred, removed or appealed to a different court, we may then choose to arbitrate. In the event this arbitration clause is not enforceable by the specified arbitration organization, the parties will mutually agree upon another arbitration organization that will enforce this clause.
13.1 Class Action and Class Arbitration Waiver. You and we each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, and you and we each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and you and we shall be deemed to have not agreed to arbitrate disputes.
13.2 Exception – Small Claims Court Claims. Notwithstanding your and our agreement to resolve all disputes through arbitration, either you or we may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
13.3 Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth above do not apply, you and we agree that any litigation between you and us shall be filed exclusively in state or federal courts located in New York, New York (except for small claims court actions which may be brought in the county where you reside). In the event of litigation relating to this Agreement or the Services, you and we agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
14. 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 Azami’s Services shall not be construed as creating a partnership, employment, agency or joint venture relationship between Azami and you. 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 Azami without your prior written consent 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, including without limitation any Client Agreement and/or Order Form, 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. Azami reserves the right to amend the terms of this Agreement, and such updated terms will be posted on the Azami website or otherwise sent to you via email, at which point such amended terms will go into effect and be binding on both Azami and you. If any provision of this Agreement is held to be invalid or unenforceable, the remainder will remain in full force and effect.
15. Questions. Should you have any questions regarding this Agreement, you may contact us at email@example.com.