Subscription Agreement

 

The terms of this Subscription Agreement (this “Agreement”) govern your access to, and use, of our Services. By accepting this Agreement, whether by clicking a box indicating your acceptance (“I accept”) or by executing an order form that references this Agreement, you agree to the terms of this Agreement as of the date on which You accept this Agreement (the “Effective Date”). If you are entering into this Agreement on behalf of a company or other entity, “You” or “Your” shall mean such entity. By agreeing to these terms on behalf of a company or other entity, you represent and warrant that you are authorized by such entity to bind and commit it to these terms and to perform the obligations of You set forth herein.

If you do not agree to the terms and conditions set forth in this Agreement, you may not use the Services and you must not agree to the terms of this Agreement.

If you are a competitor of LexisNexis, a division of Reed Elsevier Inc. (“We, “Us”, “Our” or “LN”), you may not access the Services without obtaining Our prior written consent.

IF YOU ARE USING THE SERVICES IN CONNECTION WITH AN OFFER OF A FREE TRIAL, THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES DURING THE FREE TRIAL AND AFTERWARD, IF YOU REMAIN A SUBSCRIBER.

1.       SERVICES

1.1.             Access. You and Authorized Users may access and use the Services in accordance with the terms of this Agreement. You acquire only the limited, terminable right to use the Services, and materials and do not acquire any right of ownership in them. All rights in and title to the Services, and materials, including all intellectual property rights, are owned by Us and Our licensors.

1.2.             Support. We will (a) provide Our standard support for the Purchased Services to You at no additional charge, and (b) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) scheduled downtime and (ii) any unavailability caused by fire, riot, civil disturbance, strike, embargo, earthquake, an act of terrorism, an act of God, change in laws or regulations, Internet service provider failure or delay, a denial of service attack, a Non-FirmManager Application, or any other event beyond Our reasonable control (each, a “Force Majeure Event”).

1.3.             Technical Safeguards. We will maintain administrative, physical, and technical safeguards intended to protection the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 2.3, or (c) as You expressly permit in writing.

1.4.             Updates. We may update the Services from time to time.  Notwithstanding the foregoing, You agree that Your subscription purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

2.       CONFIDENTIAL INFORMATION

2.1.             “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Customer Data. Our Confidential Information includes the Services and Content. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, product roadmap and pre-release products, and business processes disclosed by such party. The obligations of this Section 3 do not apply to Confidential Information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

2.2.             Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

2.3.             Receiving Party may disclose Confidential Information of Disclosing Party to the extent compelled by law to do so, provided Receiving Party gives Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest such disclosure.

3.       FREE TRIAL/ BETA SERVICES TERMS

3.1.             Free Trial. If You register on our website for a free trial, We will make the Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Services, or (b) the start date of any purchased Service subscription ordered by You for the Service). Additional provisions applicable to your free trial may be included on the trial registration web page. You must agree to any such additional terms and conditions in order to obtain a free trial, and such additional terms are incorporated into this Agreement by reference.

UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES, OR EXPORT ALL CUSTOMER DATA, PRIOR TO THE END OF THE TRIAL PERIOD, ANY CUSTOMER DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE DELETED AND MAY NOT BE RETRIEVED OR ACCESSED.

NOTWITHSTANDING ANY REPRESENTATIONS, WARRANTIES, INDEMNITIES OR OTHER OBLIGATIONS ON US AND SET FORTH HEREIN, DURING THE FREE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR INDEMNITY OR OTHER OBLIGATIONS.

3.2.             Beta Services. From time to time, We may invite You to access and use other web-based solutions that are not available commercially (“Beta Services”), at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be conspicuously designated as beta, pilot, limited release, developer preview, non-production, or evaluation services or versions. Beta Services are for evaluation purposes only and not for production use, are not considered “Services” under this Agreement, are not supported, and your use of them may require acceptance of additional terms. Unless otherwise set forth in such additional terms, any Beta Services trial period will expire upon the earlier to occur of: (a) six months from the trial start date, or (b) the date on which we release a commercial version of the Beta Services; provided, however, that We may discontinue Beta Services at any time in Our sole discretion on notice to you. We may never make Beta Services generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

4.       YOUR OBLIGATIONS AND LIMITATIONS ON USE; PROPRIETARY RIGHTS AND LICENSES

4.1.             You represent that You have validly entered into this Agreement and that you have the legal power and authority to do so. You are responsible for the use of the Services by Authorized Users, and their compliance with this Agreement. The Services may not be used under your subscription by Your subsidiaries or Affiliates. You will comply with the terms of this Agreement and all applicable laws in Your use of the Services and the performance of Your obligations hereunder. You are responsible for the accuracy, quality and legality of Customer Data, and the means by which You acquired it. You acknowledge and agree that: (i) You will not disclose or submit to the Services any Social Security numbers or personal health information (as defined in the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), or other data subject to regulation under HIPAA or similar state or federal laws; and (ii) We will not have access to any personally identifiable information or personal health information during the term of this Agreement.

4.2.             You may use the Services solely for Your own internal business purposes and operations. Your right to use the Services will end immediately upon termination of this Agreement. You agree to use commercially reasonable efforts to prevent unauthorized access to and use of User IDs and the Services, and will immediately notify Us in writing if You suspect that a User ID to the Services is lost, stolen, compromised or Misused, or regarding any other unauthorized access or use. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Authorized Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content, (j) frame or mirror any part of any Service or Content, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).  The results of any benchmark or comparison tests run on the Services are deemed to be Our Confidential Information. You may not publish or provide the results of any benchmark or comparison test run on the Services to any third party without Our prior written consent.

4.3.             You grant Us and Our Affiliates a worldwide, limited license to host, copy, transmit and display Customer Data, and any Non-FirmManager Application and program code created by or for You using the Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Customer Data or any Non-Firm Manager Application. Further, You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Authorized Users relating to the operation of the Services.

4.4.             We reserve the right to limit the amount of Customer Data stored within Our hosting environment. Upon prior notice to You, We may restrict your access to the Services and Your use of the Services in the event You exceed the Customer Data storage limitations set by Us at Our sole discretion.

4.5.             We are not responsible for the accuracy, completeness or integrity of any Customer Data entered into the Services. We do not warrant the accuracy of data in reports generated using Customer Data and expressly disclaims responsibility for the results obtained through reports designed and generated by You using the Services’ functionality. You are solely responsible for data validation in any reports designed and generated by You.

4.6.             You acknowledge that We own all intellectual property and other rights to the Services and the Website, and to all software, databases and tangible and intangible materials embodied in them or relating to them, including without limitation all raw, gross or compiled statistical information and other data obtained, assembled or developed by Us in the course of providing its Services, all software modifications, all derivative works, and all copyright, patent, trademark, trade secret and other intellectual property or other rights to them, without any obligation to You or any third party (collectively, the “LN Intellectual Property”).

5.       PAYMENT TERMS

5.1.             You will pay all fees due, including Recurring Charges, monthly or annually (depending on the duration of Your subscription) in advance. Fees are based on Services to which You subscribed and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. Quantities of subscriptions purchased cannot be decreased during the relevant subscription term. You acknowledge and agree that in order to use and continue using the Services and to access the database containing Customer Data, You must be current on all fees due, including all applicable Recurring Charges. Fees do not include any federal, state or local sales, use, or similar taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect taxes for which You are responsible under this Section 5.1, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.2.             You will provide Us with valid and updated credit card account information, and are responsible for providing complete and accurate billing and contact information to Us, and notifying Us immediately of any changes to such information. By accepting this Agreement, You authorize us to charge Your credit card account for all Recurring Charges due at any time. Failure to pay, including failure to provide current, valid credit card account information to Us may result in suspension or termination of the Services.

5.3.             Overdue payments shall be subject to a late payment charge calculated at a rate of one and one-half percent (or the maximum amount permitted by law) per month until paid. You shall be liable for all costs of collection incurred by LN including collection agency fees, reasonable attorney’s fees and court costs if You fail to comply with the payment obligations set forth herein. We may, without limiting Our other rights and remedies, suspend Our services to You until such amounts are paid in full. We will notify you via the Website or email that Your account is overdue, before suspending services to You.

6.       WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNIFICATION

6.1.             LN assumes no responsibility or liability regarding any information provided or any action taken by You in connection with the Services. Without limiting the foregoing, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LN DOES NOT WARRANT AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE ACCURACY, COMPLETENESS, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, THE WEBSITE AND OF ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICES. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY OR INDEMNITY OBLIGATIONS. LN DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDER. Any and all third-party software (including the WatchDox application and Zuora billing and payment solution), Services software or other methodology by which the Services are rendered are provided or distributed to You “AS IS” without representations, warranties or indemnities of any kind.

6.2.             YOU AGREE THAT THE LIABILITY OF LN, ITS AFFILIATES AND AGENTS ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICES WILL NOT EXCEED AGGREGATE FEES PAID TO US BY YOU FOR THE SERVICES PURSUANT TO THIS AGREEMENT WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. LN IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEYS’ FEES) RELATING TO THIS AGREEMENT THE WEBSITE OR THE SERVICES. THESE DISCLAIMERS APPLY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER LN HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES; PROVIDED THAT THESE DISCLAIMERS WILL NOT BE APPLICABLE TO OUR INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS HEREUNDER.

6.3.             You shall defend and indemnify LN and its Affiliates, and their respective directors, officers, agents, employees, and consultants (the “LN Indemnitees”) from any claims, actions, proceedings, costs, liabilities, judgments, obligations, penalties, losses, costs, expenses or other damages (including reasonable attorneys’ fees and expenses) sustained by the LN Indemnitees by reason of any third- party claims asserted against an LN Indemnitee and arising from the Customer Data, or Your use of the Services  or Website in a manner not permitted hereunder. LN will promptly provide notice to You of any claim subject to indemnity hereunder. You will undertake, at Your own cost, the defense with counsel reasonably acceptable to LN. LN reserves the right to participate in the defense of the claim, suit or proceeding, at its expense, with counsel of its choosing.

6.4.             We shall defend and indemnify You and Your Affiliates, directors, officers, agents, employees and consultants against any claims, actions, proceedings, liabilities, judgments, obligations, penalties, losses, costs, expenses or other damages (including reasonable attorneys’ fees and expenses) finally awarded against You, or paid by You under a court-approved settlement, by reason of any third party claim that the use of the Website or Services in accordance with this Agreement infringes or misappropriates a U.S. patent, copyright or trade secret; provided, however, that You promptly provide written notice to Us of any claim subject to indemnification hereunder,  cooperate with Us in defending the event or loss, give Us all reasonable assistance in defending such claim, at our expense, and give Us sole control of the defense and settlement of such claim; provided, finally that We shall not settle any claim subject to indemnity under this Section 6.5 that imposes any liability on You. If We determine that the Website or Services may an infringe or misappropriate a third party’s rights, We may in Our discretion (a) modify the Website or Services so that they no longer infringe or misappropriate, (b) obtain a license for Your continued use of that Service in accordance with this Agreement, or (c) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees. The above defense and indemnification obligations shall not apply to the extent the claim arises from Content, a Non-Firm Manager Application or Your breach of this Agreement.

6.5.             This Section 6 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any infringement claims.

7.       TERM AND TERMINATION

7.1.             Unless earlier terminated as permitted hereunder, the term of this Agreement starts on the Effective Date and continues until all subscriptions obtained hereunder are terminated (the “Term”); provided, however, that all subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the applicable subscription term.  The term of Your subscription is either one month (“Monthly”) or twelve months (“Yearly”) and shall be in the duration You selected and indicated either at the time of Your initial registration or, as subsequently updated in the manner permitted via the Website.  To be effective, Your notice of termination to Us shall be delivered either by telephone to our customer support phone number or to the email address posted at the Website for termination notices.  With respect to Monthly subscriptions, any termination shall be effective at the end of the calendar month immediately following the month in which You notify Us of Your desire to terminate.

7.2.             This Agreement may be terminated by either party on written notice if the other party: (i) breaches any confidentiality or non-disclosure obligation; or (ii) breaches this Agreement and fails to remedy any breach within twenty (20) days after receiving notice. This Agreement also may be terminated by Us upon one hundred eighty (180) days prior written notice in the event it no longer offers or makes the Services generally available. LN shall not be liable for any damages resulting from any termination of this Agreement.

7.3.             On the expiration or termination of this Agreement: (i) You will promptly pay amounts owed to Us in accordance with this Agreement; (ii) all User IDs and Passwords issued to You to access the Services will be deactivated; and (iii) You will promptly destroy all manuals, documents and other LN Intellectual Property and Confidential Information of Ours, if any, in Your possession. Sections 2, 4.5, 5.3, 6, 7.2 (last sentence), 7.3, 7.4, 8, 9 and 10 shall survive the expiration or termination of this Agreement for any reason.

7.4.             Upon Your request submitted within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Customer Data, and will thereafter, in the ordinary course of operation of our data backup and recovery systems, we will either delete or destroy all copies of Customer Data in Our systems or otherwise in Our possession or control, except to the extent we are required by law to retain it; provided, however, that We will continue to comply with Our obligations hereunder for so long as We possess such Customer Data.

8.       NOTICES 

8.1.             Legal notices will be in writing and will be deemed delivered if sent by overnight courier:

TO LN:

LexisNexis, a division of Reed Elsevier Inc.
Attention Chief Legal Officer
9443 Springboro Pike, Miamisburg, OH 45342

TO YOU:

At Your address on file, as provided upon registration for the Services and acceptance of this Agreement, or as updated from time to time within the Services.

8.2.             We will provide all communications, other than legal notices, to You via email or the Website. Notices sent via email will be addressed toward the primary email address You provide to Us.

9.       MISCELLANEOUS

9.1.             Assignment. No party may assign or otherwise transfer this Agreement without the prior written consent of the other party except that LN may assign this Agreement in its entirety to any purchaser of all or substantially all of its business or assets pertaining to the line of business to which this Agreement relates.

9.2.             Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performing any obligation under this Agreement that is due to a Force Majeure Event. If a Force Majeure Event occurs, the affected party will notify the other party and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure on the performance of this Agreement.

9.3.             Severability. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.

9.4.             Identification. You hereby authorize LN and its Affiliates to: (a) identify Your company name and the general nature of the Services obtained to other potential customers in connection with responses to requests for proposal and other communications not disseminated to the general public; and (b) to store and use Your business contact information for use in connection with Our products and services or in furtherance of Our and Our Affiliates’ business relationship with You and Your Affiliates.

9.5.             Governing Law. The laws of the State of Ohio, excluding its principles of conflicts of laws, shall govern the interpretation and construction of this Agreement, and any non-contractual rights or obligations arising out of or in connection with the Services.

9.6.             Independent Contractors. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

9.7.             Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement of the parties with respect to the Services and replaces and supersedes any prior written or verbal communications, representations, proposals, promises or quotations on the subject matter hereof. No term or condition stated in Your purchase order or other ordering documentation is applicable and all such terms and conditions are void. No waiver of any breach, privilege or provision of this Agreement will be construed as a waiver of any rights or remedies arising from any other breach, privilege or provision. No waiver or amendment of any provision of this Order will be effective unless in a writing signed by an authorized representative of each Party.

9.8.             Anti-Bribery Compliance. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. If You learn of any violation of the above restriction, You will promptly notify Us in writing regarding the same.

9.9.             Counterparts. If executed in tangible form using ink, this Agreement may be executed in one or more counterparts, each of which shall be deemed and original and all of which together constitute a single agreement. A .pdf or facsimile or other electronic version of an executed copy of this Agreement shall be deemed an original document for all enforcement purposes.

10.   DEFINITIONS

Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party to this Agreement, but only while that control relationship exists. “Control” means the power to direct the management and policies of that entity or the ownership or control of more than 50% of the voting interests of that entity.

Authorized User” means an individual who is authorized by You to use the Services, and to whom You have supplied a User ID.

Content” means information obtained by Us either from licensors or other sources and provided to you pursuant to an order form.

Customer Data” means any digital information, data, files, or documents submitted by You or Authorized Users to the Services. Customer Data does not include Content or Non-FirmManager Applications. Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by Customer or End Users. “Account Data” means the account and contact information submitted to the Services by Customer or End Users. Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by Customer or End Users. “Account Data” means the account and contact information submitted to the Services by Customer or End Users. Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by Customer or End Users. “Account Data” means the account and contact information submitted to the Services by Customer or End Users.

Misuse” means using the Services in a manner other than as permitted under this Agreement.

“Non-FirmManager Application” means web-based or premises-based software applications that are neither owned nor licensed by LexisNexis under this Agreement and that interoperate with the Services, including for example, an application developed or licensed for or by You.  

Recurring Charge” means the monthly or annually, depending on the term of Your subscription, recurring subscription charge for the Services.

Services” means the FirmManager practice management software solution made available at the Website. Services excludes Content and Non-FirmManager Applications.

User ID” means an identification number and password (or other authentication or security measures) that enable access to and use of the Services.

Website” means the Services website at https://app.firmmanager.com/app and any mobile equivalent.