LEXITAS PLATFORM TERMS OF SERVICE
Last Modified: November 1, 2023
These Platform Terms of Service (these “Terms”) of Chronicle Bidco Inc. (“Lexitas,” “we,” “our”, or “us”) describe your rights and responsibilities when accessing and/or using our websites, including www.lexitaslegal.com, and any successor URL(s), and any and all related software, documentation, and online, mobile-enabled, and/or digital services provided by us, including our Record Operating System (ROS) platform and our AI Services (as defined in Section 1.8) that we may make available from time to time (the foregoing, collectively, the “Services”). By accessing or using the Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms, and you acknowledge that you have read and understood our Privacy Notice (as it may be updated from time to time, our “Privacy Notice”). We reserve the right to modify these Terms and will provide notice of material changes as described below. These Terms apply to all visitors, users, and others who access the Services (“Users”). PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 12.2 AND A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 12.3 THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS IN SECTIONS 12.2 AND 12.3 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 12.3, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
These Terms incorporate by reference any other online terms you have entered into for Lexitas products and services (“Other Lexitas Terms”). Notwithstanding any provision to the contrary therein, (a) to the extent any Other Lexitas Terms conflict with these Terms, these Terms shall prevail with respect to the subject matter of such conflict; and (b) to the extent you have entered into any separate order forms with us (“Order Forms”), the applicable Order Form shall prevail with respect to the subject matter of such conflict.
1. Our Services.
1.1 Eligibility.
You may use the Services only if you can form a binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). The Services are not available to any Users previously removed from the Services by us. If you access or use the Services on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of that entity with the authority to bind that entity to these Terms, and that you agree to these Terms on the entity’s behalf.
1.2 Access to Our Services.
Subject to your compliance with these Terms, you are hereby granted a non-exclusive, limited, non-transferable, and freely revocable right to access and use the Services for your commercial use only, strictly as permitted by the features and documentation of the applicable Service. We reserve all rights not expressly granted herein to the Services and the Lexitas Content (as defined in Section 3.1 below).
1.3 User Accounts.
In order to access and use certain aspects of the Services, you must create an account by following the registration instructions provided for the applicable Service. Your account on the Services (your “User Account”) gives you access to certain services that we may establish and maintain from time to time. We may maintain different types of User Accounts for different types of Users.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. You must notify us immediately of any breach of security or unauthorized use of your User Account by emailing [email protected]. We will not be liable for, and expressly disclaim any responsibility for, any losses caused by any unauthorized use of your User Account.
1.4 Restrictions and Acceptable Use.
You agree not to engage in any of the following prohibited activities:
- providing any false or fraudulent information or documentation or providing information or documentation for any other improper purpose, whether for yourself, your business, or a third party;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity;
- developing, supporting or using software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to (a) scrape the Services or otherwise copy profiles and other data from the Services or (b) access the Services in a manner that sends more request messages to the servers running the Services than a human can reasonably produce in the same period of time by using a conventional online web browser (except that we grant the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services as specified in our robots.txt file for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of such materials, but not caches or archives of such materials);
- copying, modifying, adapting, translating, preparing derivative works from, reverse engineering, disassembling, or decompiling the Services or otherwise attempting to discover any proprietary source code or trade secrets related to the Services;
- using the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with us or the Services for any purpose without our express written consent;
- transmitting spam, chain letters, or other unsolicited communications;
- attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Services;
- taking any action that imposes, or may impose (as determined by us, in our sole and absolute discretion), an unreasonable or disproportionately large load on our infrastructure;
- uploading or otherwise providing any invalid data, viruses, worms, or other software agents through the Services;
- collecting or harvesting any Personal Information (as defined in Section 5) from the Services;
- interfering with the proper working of the Services; or
- bypassing the measures we may use to prevent or restrict access to the Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on the use of the Services or the content therein.
We may, with or without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. Unless we have otherwise agreed in writing, we may permanently or temporarily terminate or suspend your access to your User Account and/or the Services with or without notice and without liability, for any reason, including if, in our sole determination, you violate any provision of these Terms, or for no reason.
1.6 Emails from Lexitas.
By providing us your email address, you consent to our using that email address to send you notices related to the Services, including any notices required by Applicable Law, in lieu of communication by postal mail. We may also use your email address to send you other messages related to your User Account and your use of the Services, such as messages notifying you of changes to features of the Services (such emails, “Transactional Emails”) and emails about promotional offers for Lexitas products and services. If you do not want to receive such email messages, you may opt out of receiving such email messages by clicking on the “unsubscribe” link in the email message received.
Opting out of Transactional Emails may prevent you from receiving email messages regarding important updates and information about your User Account and the Services.
1.7 Text Messages and Calls from Lexitas.
(a) Transactional Text Messages and Calls.
By providing your phone number, you expressly consent and agree that we may contact you using written, electronic, and/or verbal means, including by manual dialing, leaving prerecorded/artificial voice messages, and/or using an automatic telephone dialing system to call or send recurring SMS/text messages to your phone number as necessary to (i) help keep your User Account secure through the use of two-factor authentication; (ii) help you access your User Account when you’ve forgotten your password; and (iii) as otherwise necessary to service your User Account, complete transactions requested by you, or enforce these Terms, our policies, or Applicable Law, even if the provided phone number is registered on any federal or state Do-Not-Call registry. For purposes of clarity, the communications described in this paragraph are transactional in nature, and not promotional.
(b) Promotional Text Messages and Calls.
We may offer you the chance to enroll to receive recurring SMS/text messages from us about account-related news and alerts and/or marketing and promotional offers for Lexitas products and services (collectively, “Promotional Text Messages”). By enrolling, you agree to receive recurring Promotional Text Messages from us to the phone number you provide and that such Promotional Text Messages may be sent using an automatic telephone dialing system.
You may opt-out from Transactional and Promotional Text Messages at any time. To unsubscribe from Promotional Text Messages, text STOP, QUIT, END, CANCEL, or UNSUBSCRIBE or reply STOP, QUIT, END, CANCEL, or UNSUBSCRIBE to any Promotional Text Message you receive from us. You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request. For help, contact us at [email protected].
You certify that any phone number(s) you provide to us are true and accurate and that you are authorized to enroll such phone number(s) to receive calls and/or SMS/text messages as described herein. Message and data rates apply. Consent is not required as a condition of purchase. We are not responsible for any delays upon sending or receiving text messages.
Please note the above sharing of personal information to third parties (i.e., business partners and ad networks) excludes text messaging originator opt-in data and consent; this information will not be shared with any nonaffiliated third parties.
1.8 AI Services.
(a) Overview.
Certain Services, such as our Record Insights™ Service (“Record Insights”) and Depositions Insights™ Service (“Depositions Insights”), utilize artificial intelligence (“AI”) technology (such Services, collectively, “AI Services”) to enable you to generate outputs and insights based on User Inputs (as defined below) (collectively, “Outputs”). As used herein, “User Inputs” means any User Content (as defined in Section 2) that you provide to us in connection with AI Services.
(b) Responsibility for User Inputs and Outputs.
You are solely responsible for all User Inputs and Outputs, including without limitation for ensuring the accuracy of all Outputs and that all Outputs comply with Applicable Law, these Terms and any other rules and guidelines that we may make available. We have the right (but not the obligation), in our sole and absolute discretion, to remove any User Inputs and any Outputs from the Services.
(c) Disclaimer – User Inputs and Outputs.
WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY USER INPUTS OR ANY OUTPUTS.
YOU ARE SOLELY RESPONSIBLE FOR USER INPUTS AND THE CONSEQUENCES OF POSTING, PUBLISHING, SHARING, OR OTHERWISE MAKING USER INPUTS AVAILABLE TO US THROUGH THE SERVICES, AND YOU ARE SOLELY RESPONSIBLE FOR ALL OUTPUTS GENERATED THROUGH YOUR USE OF THE AI SERVICES.
YOU UNDERSTAND AND AGREE THAT OUTPUTS MAY CONTAIN “HALLUCINATIONS” AND MAY BE INNACURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO YOUR PURPOSE, AND YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DAMAGES YOU ALLEGE TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUTS OR OTHER CONTENT GENERATED OR ACCESSED ON OR THROUGH THE SERVICES.
FOR CLARITY, THIS SECTION DOES NOT LIMIT ANY OTHER PROVISION HEREIN.
(d) Licenses to Lexitas.
(i) License to User Inputs. You hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to us an irrevocable, perpetual, transferable, sublicensable (through multiple tiers), fully paid, royalty-free, and worldwide right and license to use, copy, store, modify, distribute, reproduce, publish, list information regarding, and make derivative works of User Inputs to (A) generate Outputs and to otherwise provide the Services to you; (B) with respect to any User Inputs provided in connection with Record Insights, to train and improve Records Insights and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends; and (C) perform such other actions as described in our Privacy Notice or as authorized by you in connection with your use of the Services.
(ii) License to Outputs. You hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to us an irrevocable, perpetual, transferable, sublicensable (through multiple tiers), fully paid, royalty-free, and worldwide right and license to use, copy, store, modify, distribute, reproduce, publish, list information regarding, and make derivative works of Outputs, to (A) train and improve our products and the Services and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends; and (B) perform such other actions as described in our Privacy Notice or as authorized by you in connection with your use of the Services.
2. User Content.
Some areas of the Services allow you to submit, post, display, provide, or otherwise make available content such as documents, profile information, comments, questions, and other data, content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Services is referred to herein as “User Content”).
As between us and you, you (or your licensors) will own all User Content. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Services and our (and our successors’ affiliates’) business, including without limitation for promoting and distributing parts or all of the Services (and derivative works thereof) in any media formats and through any media channels.
In connection with your User Content, you affirm, represent and warrant the following:
- The User Content is not subject to a protective order and/or you are not otherwise restricted from submitting, posting, displaying, providing, or otherwise making such User Content available to us;
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Services and these Terms, and each such person has released you from any liability that may arise in relation to such use;
- You have obtained and are solely responsible for obtaining all consents as may be required by law to submit, post, display, provide, or otherwise make available any User Content relating to third parties, and the User Content you submit, post, display, provide, or otherwise makes available will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights; and
- We may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
3. Our Proprietary Rights.
3.1 Lexitas Content.
You acknowledge and agree that, except for your User Inputs and Outputs (which, as further described in Section 1.8 and Section 2 above, are owned by you), the Services and all materials, data, and content displayed or made available on the Services, including all software, algorithms, code, technology and intellectual property underlying and included in or with the Services, and all intellectual property and other proprietary rights therein and thereto throughout the world (the “Lexitas Content”) are our (or our licensors’ and suppliers’, as applicable (collectively, “Suppliers”)) sole and exclusive property. For clarity, Lexitas Content shall not include any of your User Content, including your User Inputs, and Outputs.
Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any intellectual property or other proprietary rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any of Lexitas Content.
3.2 Usage Data.
We may collect, maintain, process, and use, or you may provide to us, diagnostic, technical, usage, and related information, including information about your computers, mobile devices, systems, and software (collectively, “Usage Data”). You agree that all Usage Data is owned solely and exclusively by us, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to us all rights, title, and interest in and to the same. Accordingly, we may use the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the Services; (b) to develop and improve the Services; (c) to monitor your usage of the Services; (d) for research and analytics and for our other business purposes; and (e) to share analytics and other derived Usage Data with third parties, solely in deidentified or aggregated form. The Services may contain technological measures designed to prevent unauthorized or illegal use of the Services. You acknowledge and agree that we may use these and other lawful measures to verify your compliance with the terms of these Terms and to enforce our rights, including all intellectual property rights and other proprietary rights, in and to the Services.
3.3 Feedback.
To the extent you provide any suggestions, recommendations, or other feedback relating to the Services (collectively, “Feedback”), such Feedback is non-confidential, and you hereby grant, and you represent and warrant that you have all rights necessary to grant, to us a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide license, with the right to grant and authorize sublicenses, to implement, use, modify, and otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution, or other obligations to you or any third party.
4. Fees and Payment.
All fees and other amounts set forth as part of the Service shall be paid within thirty (30) days of your receipt of the applicable invoice, unless otherwise specified. All fees are non-refundable. You are required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
5. Privacy and Security.
We care about the privacy of our Users. By using the Services, you understand and acknowledge that your Personal Information (as defined below) will be collected, used, and disclosed as set forth in our Privacy Notice. To the extent User Content includes Personal Information subject to U.S. Data Protection Laws (as defined in the DPA), such Personal Information will be collected, used, disclosed, and otherwise processed in accordance with the terms set forth in the Lexitas Data Processing Addendum (“DPA”), available to you at www.lexitaslegal.com/data-processing-addendum and which is hereby incorporated by reference.
6. No Professional Advice.
If the applicable Service provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Services. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
7. Third-Party Links, Information, and Services.
The Services may contain links to third-party websites and services, and may contain content and other materials that are not owned or controlled by us (collectively, “Third-Party Services”). Further, to use the Services, you may be required to register for Third-Party Services and/or to otherwise enable various Third-Party Services that may directly integrate with the Services. We do not endorse or assume any responsibility for any Third-Party Services, nor for any information, materials, products, or services available on or through Third-Party Services. If you access a Third-Party Service from the Services, you do so at your own risk, and you understand that these Terms do not apply to your access to or use of such Third-Party Services. You acknowledge that a Third-Party Service may revoke your right to access and/or authenticate to such Third-Party Service at any time. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any Third-Party Services. We may enable Third-Party Services merely as a convenience to Users, and the inclusion of Third-Party Services does not imply an endorsement or recommendation of them. You expressly relieve us from any and all liability arising from your access to and/or use of any Third-Party Services. Additionally, your dealings with or participation in promotions of advertisers that may be found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and any such advertisers or similar parties. You agree that we will not be responsible for any loss or damage of any sort relating to your dealings with any such advertisers or similar parties.
8. Cooperation.
If requested, you agree to diligently assist us in responding to requests and inquiries with respect to your User Account and/or material or transactions associated with you or your User Account, including, without limitation, by providing us with all information and assistance we may reasonably require, and/or responding promptly and accurately to any such requests and inquiries, should we connect between you and the inquirer.
9. Release and Indemnity.
You hereby release Lexitas from all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including any other User) in connection with the Services. In addition, you waive any Applicable Law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY.”
You agree to defend, indemnify, and hold harmless Lexitas and its Suppliers, employees, contractors, agents, attorneys, accountants, officers, and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including, but not limited to, attorneys’ fees) arising from: (a) your access to and use of the Services, including any User Content or other data or content transmitted or received by you, and any Outputs; (b) your violation of these Terms, including, without limitation, your breach of any of the representations and warranties herein contained; (c) your violation of any third-party right, including, without limitation, any right of privacy or intellectual property or other proprietary right; (d) your violation of any Applicable Law; (e) any content that is submitted via your User Account, including, without limitation, misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access to and/or use of the Services with your credentials. Lexitas reserves the right, in its sole discretion and at its expense, to assume the exclusive defense and control of any such claims, in which case, you agree to cooperate as reasonably requested by Lexitas in the defense of such claims.
10. No Warranty.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE LEXITAS CONTENT, AND ANY OTHER INFORMATION AVAILABLE ON OR THROUGH THE SERVICES, INCLUDING ANY OUTPUTS, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LEXITAS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LEXITAS AND ITS SUPPLIERS DO NOT WARRANT THAT THE LEXITAS CONTENT OR ANY OTHER INFORMATION CONTAINED IN THE SERVICES, INCLUDING ANY OUTPUTS, IS ACCURATE, COMPREHENSIVE, RELIABLE, USEFUL, OR CORRECT; THAT THE SERVICES OR ANY OUTPUTS WILL MEET YOUR REQUIREMENTS OR SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR APPLICABLE LAW; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY OUTPUTS, IS OBTAINED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM OR FROM YOUR USE OF THE SERVICES. LEXITAS IS NOT RESPONSIBLE FOR ANY DECISIONS, NOR FOR ANY DAMAGES OR OTHER LOSSES RESULTING FROM THE RELIANCE ON OR USE OF INFORMATION PROVIDED BY LEXITAS AND/OR THROUGH THE SERVICES, INCLUDING ANY OUTPUTS. FURTHER, LEXITAS DOES NOT WARRANTOR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND LEXITAS WILL NOT MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY.
FEDERAL LAW AND SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LEXITAS OR ITS SUPPLIERS, EMPLOYEES, CONTRACTORS, AGENTS, ATTORNEYS, ACCOUNTANTS, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, HARM TO REPUTATION, USE, OR DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES, AND/OR TO THE LEXITAS CONTENT OR ANY OTHER INFORMATION CONTAINED IN THE SERVICES, INCLUDING ANY USER CONTENT OR OUTPUTS. UNDER NO CIRCUMSTANCES WILL LEXITAS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR YOUR USER ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEXITAS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, INCLUDING IN ANY OUTPUTS; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY INFORMATION CONTAINED THEREIN, INCLUDING ANY OUTPUTS; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS RUNNING THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY OUTPUTS OR ANY LEXITAS CONTENT, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY OUTPUTS OR ANY OTHER CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (G) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT WILL LEXITAS OR ITS SUPPLIERS, EMPLOYEES, CONTRACTORS, ATTORNEYS, ACCOUNTANTS, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO LEXITAS HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF LEXITAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Governing Law; Venue; Class Action and Jury Trial Waiver; Arbitration
12.1 Governing Law. These Terms will be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law governing these Terms, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the arbitration provision in Section 12.3 below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is determined to not apply to any issue that arises from or relates to the arbitration provision in Section 12.3 below, then that issue will be resolved under and governed by the law of the U.S. state where you reside or the jurisdiction mutually agreed upon in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our intellectual property rights or other proprietary rights, as set forth in the arbitration provision in Section 12.3 below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision in Section 12.3 below is found to be unenforceable.
12.2 Venue; Waiver of Jury Trial; Fees. The state and federal courts located in Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms or their formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision in Section 12.3 below is found In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12.3 Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. This Section 12.3 (this “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Services, including receipt of any advertising, marketing, or other communications from us; (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms.
If you are a new User, you can reject and opt-out of this Arbitration Agreement within thirty (30) calendar days of accepting these Terms by emailing us at [email protected] with your first and last name and stating your intent to opt-out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or the courts in which any disputes must be brought.
For any Claim, you agree to first contact us at [email protected] and attempt to resolve the Claim with us informally. In the unlikely event that the parties have not been able to resolve a Claim after sixty (60) calendar days, each party agrees to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and we agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
NOTHING IN THIS SECTION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the class action and jury trial waiver in Section 12.2 above is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.
13. General.
13.1 Assignment. These Terms, and any rights and licenses granted thereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
13.2 Notification Procedures and Changes to these Terms. We may provide notifications, whether such notifications are required by Applicable Law or are for marketing or other business related purposes, to you via email notice, or written or hard copy notice, or through posting of such notice on our website(s), as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in these Terms. We are not responsible for any automatic filtering you or your technology provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Services after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of the terms of these Terms or to any future Terms of Service, do not access or use (or continue to access or use) the Services.
13.3 Entire Agreement/Severability. These Terms, together with any Order Form(s), amendments and any additional agreements you may enter into with us in connection with the Services, will constitute the entire agreement between you and us concerning the Services. Except as otherwise stated in the Arbitration Agreement, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.
13.4 No Waiver. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or of any other term, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
13.5 Contact. Please contact us at [email protected] with any questions regarding these Terms. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.