Last Revision Date: April 19, 2023
1. INTRODUCTION
1.1 The KLDiscovery Client Portal (hereinafter the “Portal”) is operated and maintained by KLDiscovery Ontrack, LLC with principal address at 9023 Columbine Road, Eden Prairie, MN 55347 and all its group companies (collectively referred to as “KLDiscovery”).
1.2 KLDiscovery provides access to the Portal to the authorized users of its clients to view, access and retrieve information provided by KLDiscovery relating to projects of its clients. By using the Portal, you agree to these Terms of Use (“Terms”). These Terms shall supplement the terms of any services agreement that the instructing client may have with KLDiscovery as to your use of the Portal. For avoidance of doubt, any direct conflict between these Terms and the terms of any services agreement the instructing client may have with KLDiscovery, these Terms shall govern your access to and use of the Portal.
1.3 The Portal is accessible through your desktop or mobile. KLDiscovery grants you a non-exclusive, non-transferable, non-sublicensable, limited and revocable license to use the Portal in accordance with these Terms. You shall only have access to the Portal and benefit from this license for so long as the instructing client has a services agreement with KLDiscovery that remains in force. Your access and use of the Portal may also be terminated on the instruction of the instructing client.
1.4 Through the Portal you may have access to tools, programs, materials, reports, publications, information and/or products (the “Materials”). KLDiscovery provides you with personalized access to the Portal through a username and login process. You agree to be responsible for maintaining the confidentiality and security of all login credentials granted to you to access and use the Portal and to be responsible for all activities in connection with the Portal undertaken using your login credentials. You agree that access to the Portal is solely for your internal business purposes and agree not to share, transfer or otherwise allow access to the Portal without approval from KLDiscovery in writing. For avoidance of doubt, you agree that nothing herein shall grant any additional license, right, or remedy not so expressly granted in a current services agreement the instructing client has with KLDiscovery.
1.5 Except as specifically provided for in these Terms or pursuant to the services agreement between the instructing client and KLDiscovery, no access to the Portal or Materials may be: (i) used to provide services or products to any third party; or (ii) shared with any third parties, except for your agents or your authorized representatives acting on your behalf, for which you accept full responsibility.
1.6 Save as permitted by applicable law, you agree not to access or use the Portal in any manner that could modify, manipulate, disassemble, decompile, attempt to gain access to the source code, reverse engineer, damage, disable, overburden, impair, allow automated access/bots to, make derivative works of, or otherwise result in any unauthorized access to the Portal. You shall not use your access to unlawfully access any other area of KLDiscovery’s information technology systems, environments, networks, files, data or accounts to which express authorization has not been obtained (including access to data not intended for you), or log into a server or account that you are not authorized to access.
1.7 In the event that you are able to upload or publish content or other client generated information and materials (“Client Materials”) to the Portal, you shall ensure that the Client Materials are not unlawful, illegal nor contain any threatening, harassing, libelous, defamatory, obscene, scandalous, inflammatory, sexually oriented, pornographic, or profane material, content or images, or other images, content or messages that might be considered lewd, lascivious, excessively violent or otherwise offensive. You shall further ensure that such Client Materials are uploaded or published in compliance with applicable law (including data privacy laws), any contractual or fiduciary relationships applicable to you and/or you otherwise have the appropriate legal rights to publish such Client Materials to the Portal.
2. DISCLAIMERS
2.1 The Portal and all Materials contained in or derived from the Portal are provided “as is” and exclusive of any warranty, whether express or implied in law, including the implied warranties of merchantability or fitness for a particular purpose.
2.2 KLDiscovery reserves the right, in its sole discretion, to modify, alter or otherwise update the Portal or to change or delete any features of the Portal, at any time, with or without prior notice to you (“Modifications”). Such Modifications shall be effective immediately and your continued use of the Portal constitutes your acceptance of such Modifications. Specifically, KLDiscovery offers no assurance or guarantee that any features of the Portal shall continue or be available either at all or in any modified format.
3. CONFIDENTIALITY
3.1 The information provided within the Portal including the Materials and any Client Materials is confidential, proprietary in nature, and may also be attorney-client privileged and/or work product privileged. Any form of unauthorized copying, dissemination, distribution or publishing in any of way of the Materials, Client Materials or other information contained within the Portal is strictly prohibited, may be unlawful and may also breach any contract or other arrangement you may have with the instructing client.
3.2 KLDiscovery will take commercially reasonable efforts to keep the Portal free from unauthorized third-party access. In the event of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Materials or unauthorized access to the Portal, KLDiscovery shall follow any reporting obligation set out in the services agreement with the instructing client.
4. EXPORT LAWS
4.1 You acknowledge that the laws and regulations of the United States and other countries may prohibit sales of products and services to designated states or jurisdictions, individuals or companies (“Export Laws”). To the extent that any Export Laws may apply to the Portal, the Materials and/or Client Materials, you shall fully comply with the terms of such Export Laws.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 KLDiscovery reserves all rights, titles, licenses, and interests in the Portal. Where Materials or Client Materials are based on, derived from or are directly from you or the instructing client, these intellectual property rights vest according to the services agreement with the instructing client. Except as aforesaid, nothing herein shall convey any ownership, license, title, or interest to the intellectual property of one party to the other.
6. TERMINATION
6.1 KLDiscovery may terminate or suspend any rights of access to the Portal on immediate notice delivered at any time if: (i) KLDiscovery deems that continued access may pose a security threat to the Portal or KLDiscovery’s security environment or risks the unauthorized disclosure of any Materials or Client Materials; (ii) you are in breach of these Terms; or (iii) in the event of any breach of any services agreement the instructing client may have with KLDiscovery. In any other case, KLDiscovery may terminate or suspend any rights of access to the Portal on 7 (seven) days notice delivered at any time. In the event of suspension or termination of access to the Portal, restoration of access shall be at KLDiscovery’s discretion and subject to additional assurances regarding compliance.
7. CUSTOMER ACKNOWLEDGEMENTS
7.1 You shall defend, indemnify, and hold KLDiscovery, its affiliates and agents, harmless from any and all claims, liabilities, costs, and expenses, including reasonable attorneys' fees, arising from or related to your use of the Portal or Materials or any breach hereunder by you or any user to whom you grant access to the Portal or Materials, or any of your customers or agents, or any other third parties who utilize or access the Portal or Material on your behalf.
8. LIABILITY
8.1 Save as set out in applicable law, in no event shall KLDiscovery be liable for any indirect, incidental, special, or consequential damages for loss of profits, revenue, data or use, or any other damage(s) related thereto, incurred by you or any third party, whether in contract, tort, or otherwise, arising from use of the Portal. The maximum liability of KLDiscovery arising from any liability pursuant to use of the Portal shall be limited to $10,000.
9. GOVERNING LAW
9.1 These Terms shall be governed by the laws of the Commonwealth of Virginia and any legal suit, action or proceeding arising out of or relating to these Terms shall be commenced in a federal court in the Eastern District of Virginia or in state courts with jurisdiction over Fairfax County, Virginia.
9.2 KLDiscovery may, at any time and without notice, provide updates, changes, new clauses or other amendments to these Terms (“Changes”) as KLDiscovery deems appropriate. Your continued use of the Portal following such Changes constitutes your acceptance of the Terms and any changes.
10. DATA PRIVACY
10.1 By agreeing to these Terms, you are also agreeing to the storage and use of your personal data pursuant to the terms of our Privacy Policy, which is available at www.kldiscovery.com/privacy-policy.
11. OTHER IMPORTANT TERMS
11.1 KLDiscovery’s performance shall be excused to the extent performance is hindered, delayed or made impractical due to causes beyond KLDiscovery’s reasonable control.
11.2 You may not assign your rights or obligations hereunder without first obtaining the prior written consent of KLDiscovery.