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eBrevia, Inc. Terms & Conditions of Service

 

These eBrevia, Inc. Terms & Conditions of Service (this “Agreement” or these “Terms and Conditions”) is between eBrevia, Inc. (“eBrevia”) with offices at 140 East 45th Street, New York, NY 10017, and the individual or entity (“Licensee”) that is identified on the Proposal (as hereinafter defined). This Agreement governs Licensee’s use of the Services. eBrevia and Licensee each, a “Party”, and together, the “Parties”.

1. DEFINITIONS.

Affiliate” means any entity which directly or indirectly owns or controls, is controlled by, or is under common control with, eBrevia or Licensee. For purposes of this definition only, “Controlling”, “controlled by”, or “under common control with” means either the beneficial ownership under trust, or outright ownership of more than fifty (50) percent (%) of the affiliate or business entity itself or the affiliate’s or business entity’s securities, or units if a limited liability company.

Authorized User(s)” means those employees, attorneys, paralegals or professional staff who are engaged to perform legal or related services in the name of Licensee. 

Data Protection Legislation” means the GDPR and all other applicable law, from time to time, relating to the processing of personal data and privacy.

 “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament.

Licensee Data” means any documents uploaded to the Services.

Licensee Personal Data” means all information and data (including texts, documents, diagrams, or images) owned by, licensed to (other than by eBrevia) or relating to the Licensee and/or any of its customers, which is in each case generated by, to, or is otherwise retained by, eBrevia pursuant to or in connection with this Agreement.

Process(ed)(ing)” is when the content of a Unique Document is imported into the Services.

 “Services” means Licensee’s access to either the eBrevia software product Contract Analyzer™ or Contract Tracker™, as applicable, together with any applicable training, support and documentation provided by eBrevia.

Unique Document” means a non-identical version of a document, as determined by the MD5 hash value, or other industry-accepted process for distinguishing between non-identical versions of a document and is no more than 300 pages.

2. LICENSE.

Subject to these Terms and Conditions, and payment of any fees set out in the corresponding proposal, purchase order, statement of work, order form or work order between the Parties (“Proposal”), eBrevia hereby grants to Licensee, and Licensee hereby accepts, a limited, nonexclusive, nontransferable, non-sub-licensable license (“License”) to access and use the Services to Process Unique Documents as set out in the corresponding Proposal. This License is for use by the Licensee and its Authorized Users. Licensee may share the analysis resulting from use of the Services with Licensee’s clients, but such clients may not be permitted to access or use the Services directly, unless they have obtained a separate license for use thereof.

Licensee acknowledges that the Services constitute the proprietary information and property of eBrevia.  Title to and ownership of the Services (and updates, modifications, derivative works or improvements thereto) and all copies thereof, including all rights under any applicable patent, copyright, trademark, trade secret or other law, shall be and at all times remain in eBrevia and its licensors.  Without limiting the foregoing, Licensee acknowledges that eBrevia and its licensors own all intellectual property and other rights in and to the Services and https://secure.ebrevia.com or other eBrevia website which they are provided and to all software, source code, documentation, databases, and tangible and intangible materials embodied in them or relating to or derived from them and nothing herein shall grant any ownership in the foregoing to Licensee.  Licensee shall not remove or modify any eBrevia trademark, copyright or other proprietary rights notices contained on any eBrevia website, reports generated using the Services, documentation or other materials.    

eBrevia may deny Licensee or any of its Authorized Users access to the Services if (i) Licensee or its Authorized Users use the Services beyond the scope of this Agreement or in violation of any law or regulation; (ii) Licensee or any such Authorized User’s use of the Services may, in eBrevia’s reasonable opinion, unreasonably impair the ability of other Authorized Users to access or use the Services; (iii) Licensee has failed to pay any overdue invoice after receipt of written or email notice of such delinquency and a thirty (30) calendar day opportunity to cure; (iv) Licensee is or works for a competitor of eBrevia. 

3. TERM AND TERMINATION.

This Agreement shall have an initial term as specified in the corresponding Proposal. If there is no corresponding Proposal, this Agreement will continue unless and until terminated by either Party by written notice to the other Party. The provisions of Sections 2, 3, 4, 5, 6, 8 and 10, and any other provisions which by their nature are intended to survive, shall survive termination of this Agreement.

Either Party may terminate this Agreement for breach if the other Party is in material breach of the Agreement and fails to cure that breach within fifteen (15) days after receipt of written notice (electronic mail sufficient).  eBrevia may terminate this Agreement at its convenience upon thirty (30) days written notice (electronic mail sufficient) to Licensee.

Upon termination, the License granted hereunder shall terminate and Licensee shall immediately delete all live copies of the Services.  Upon termination and/or at Licensee’s written request, eBrevia will delete all live copies of Licensee Data from its system. Notwithstanding the foregoing, eBrevia may retain such Licensee Data as it is required to retain by applicable law or which is retained on its encrypted computer backup tapes for 6 months in accordance with its Records Retention Policy.   

4. WARRANTIES.

eBrevia shall use commercially reasonable efforts to ensure that the Services will substantially conform to the descriptions of the features and functionality of the Services provided by eBrevia, which may be modified from time to time by eBrevia in its sole discretion. The Services are intended to be used as a tool to assist in the review, summarizing and management of legal documents and provisions in such documents. They are not intended to, and do not, constitute or take the place of legal advice. Licensee is responsible for all decisions made based on information generated by the Services. Licensee understands that, as a result of computer or communications failures or other reasons, the Services may be inaccessible from time to time, with or without notice. eBrevia does not warrant that the Services will be free from error or that access to the Services will be uninterrupted. The foregoing warranties will not apply to the extent that (i) the Services are used for any purpose other than as described in this Agreement, (ii) the cause of a breach of warranty is due to a malfunction in Licensee’s hardware, software, or communications network through which the Services are accessed, or (iii) the cause of a breach of warranty is due to any other cause outside of eBrevia or its hosting facility’s sole and reasonable control. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, THE SERVICES ARE SUPPLIED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, ACCURACY, COMPLETENESS AND FITNESS FOR A PARTICULAR PURPOSE. EBREVIA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES.

5. INDEMNITY.

eBrevia shall, at its sole cost and expense, release, defend, indemnify and hold harmless Licensee, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the technology used by eBrevia for the Services infringes a patent, copyright, trademark, trade secret or other proprietary right of a third party, provided that this indemnity shall not apply to the extent that the infringement was caused by any modification of the Services conducted by or on behalf of the Licensee or any Authorized User. Notwithstanding any provision to the contrary contained herein, the limitation of liability contained in Section 6 shall not apply to any indemnity obligation contained under this Section 5. Licensee shall, at its sole cost and expense, release, defend, indemnify and hold harmless eBrevia, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a breach of this Agreement (including without limitation, any breach of the Licensee’s representations in Section 7) or any claim that any Licensee Data uploaded into the Services violate the intellectual property, privacy or other proprietary rights of any third party or violates any local, state, federal or foreign laws, rules and/or ordinances. The party seeking indemnification shall notify the other party promptly of any such action, suit or proceeding and shall cooperate fully with the indemnifying partying the defense of any such claim. The indemnifying party shall have sole control of the defense of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with eBrevia's provision of the Services. The indemnified party may participate, at its expense, in the defense of any such action, but shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying party.

6. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EBREVIA, ITS AFFILIATES, EMPLOYEES, AGENTS, OR ANY THIRD PARTY CONNECTED WITH THE SERVICES SHALL NOT BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY CLAIMS AGAINST THE LICENSEE BY ANY OTHER PARTY; (B) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST REVENUE OR EARNINGS, LOST SAVINGS, LOST DATA, LOSS OF USE OR BUSINESS INTERRUPTION OR THE LIKE) ARISING OUT OF THE USE, INTERRUPTION IN USE, OR FAILURE OF THE SERVICES SUPPLIED HEREUNDER; (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (D) ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, ERRORS OF ANY KIND, EVENT OF FORCE MAJEURE AND/OR MATTERS BEYOND ITS CONTROL, IN EACH CASE WHETHER OR NOT EBREVIA HAS BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE PRECEDING SENTENCE, IT IS AGREED THAT THE MAXIMUM LIABILITY OF EBREVIA, ITS AFFILIATES, EMPLOYEES, AGENTS, OR ANY THIRD PARTY CONNECTED WITH THE SERVICES PROVIDED TO LICENSEE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ALL DIRECT DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY LICENSEE TO EBREVIA DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT RESULTING IN A CLAIM FOR DAMAGES, AND THAT THIS SHALL BE THE LICENSEE'S EXCLUSIVE REMEDY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR PERTAINING TO THE SERVICES OR THE TERMS OF THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. NOTWITHSTANDING THE FOREGOING, EBREVIA DOES NOT EXCLUDE OR LIMIT ITS LIABILITY IN RESPECT OF CLAIMS FOR DEATH OR PERSONAL INJURY CAUSED BY EBREVIA’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FOR FRAUD.

7. LICENSEE REPRESENTATIONS.

Licensee hereby represents to eBrevia that: (i) it has all rights necessary to utilize the Services and to otherwise perform its obligations under this Agreement; (ii) any documents uploaded to the Services (“Licensee Data”) does not violate the rights of any third party; (iii) Licensee Data shall not, with the knowledge of Licensee, include Protected Health Information (as defined by the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L. 104-191), as amended), payment card Cardholder Information, as defined by Payment Card Industry standards, or information identifiable with any individual that is protectable under the Gramm-Leach-Bliley Financial Modernization Act of 1999, as amended, or similar state or federal laws, (iv) it will comply with any other local, state, federal or foreign laws, rules and/or ordinances applicable to the performance of its obligations under, and use of the Services pursuant to, this Agreement; (v) in using the Services it will not (and will ensure that Authorized Users shall not), introduce any software, virus or other material which could interfere with the operation of the Services; (vi) it shall not copy, sell, distribute, modify or create derivative works of, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or internal operating components of the Services; (vii) it is not a competitor to eBrevia and shall not access or use the Services to collect any research or data for a competing product or business or attempt to access or use the Services beyond Licensee’s authorization; and (viii) it will not tamper or interfere with the proper functioning or integrity of the Services, any eBrevia website, any information provided thereby, or with any other person’s use thereof.

8. CONFIDENTIALITY.

Confidential Information” means (i) all components of the Services, including without limitation, all non-public information, documentation, know-how, intellectual property, source code, and login credentials issued by eBrevia; (ii) Licensee Data; and (iii) any other information (including the terms and pricing of the Services and this Agreement and any Proposal) or materials disclosed or made available by either Party relating to such Party or its or its parent company’s business which is identified as confidential at the time of disclosure or which should reasonably be understood to be confidential.

Neither eBrevia nor Licensee shall disclose to any third party (other than their or their parent company’s employees, contractors, agents and representatives with a need to know such information who are subject to confidentiality obligations at least as protective as those herein) or use, except as permitted under this Agreement, any Confidential Information it receives from the other Party hereunder.  eBrevia and Licensee will each use reasonable efforts, which are at least as diligent as those used to protect its own proprietary information, to safeguard the other Party’s Confidential Information and prevent its unauthorized disclosure or use.   

Confidential Information does not include information already known to the receiving Party at the time of disclosure by the other Party; information generally known or available to the general public; information received from a third party who is not under obligation of confidentiality to the disclosing Party; or information independently developed by the receiving Party.  Each Party acknowledges that any unauthorized use or disclosure of the Confidential Information may cause irreparable damage to the other Party. If an unauthorized use or disclosure occurs, such Party will take, at its expense, all steps that are necessary to recover the other Party's Confidential Information and to prevent its subsequent unauthorized use or dissemination.  In the event of a breach or threatened breach of this Section 8, the disclosing Party may seek equitable relief, including an injunction and specific performance, without the need to post a bond.  To the extent permitted by law or equity, irreparable harm shall be presumed.

9. PRIVACY AND DATA PROTECTION.

Licensee’s access to the Services, its use of the eBrevia website(s) and any Licensee Data or Licensee Personal Data uploaded to the Services is governed by eBrevia’s Privacy Notice which is linked to eBrevia website(s).   Both Parties will comply with their obligations under any Data Protection Legislation. Licensee agrees to receive announcements from eBrevia as well as marketing and Service-related communications from time to time.

10. MISCELLANEOUS.

ASSIGNMENT.

eBrevia may assign this Agreement, and all rights granted to it hereunder, including copyright licenses, to any of its Affiliates or to a successor to its business or purchaser of all or substantially all of its stock or assets. Licensee may not sublicense, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of eBrevia.  This Agreement is binding upon and will inure to the benefits of each of the Parties and their respective successors and assigns.

MODIFICATION.

eBrevia reserves the right at any time to modify the features, functionality or performance of the Services and to modify these Terms and Conditions at any time.  The version of these Terms and Conditions governing any transaction or Proposal shall be the version in effect at the time Licensee or one of its Authorized Users logs in to the Services.

SEVERABILITY.

The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or enforceability of this Agreement or of any other provision hereof and, in such event, the Parties will agree upon a substitute provision which provides the Parties as near a result to the original provision as is practicable while also being valid and enforceable.

INDEPENDENT CONTRACTORS.

This Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the Parties hereto. Neither Party shall have the authority or represent itself as having the authority to bind the other Party to any agreement or commitment with a third party or otherwise.

GOVERNING LAW AND JURISDICTION.

This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, without regard to its conflict of laws rules. The Parties hereby: (a) waive all right to trial by jury; and (b) consent to the exclusive jurisdiction and venue in the state and federal courts located in New York.

FORCE MAJEURE.

AT TIMES, ACTION OR INACTION OF PARTIES OTHER THAN EBREVIA OR EVENTS BEYOND EBREVIA’S REASONABLE CONTROL (“FORCE MAJEURE EVENTS”) CAN IMPAIR OR DISRUPT EBREVIA’S ABILITY TO PROVIDE THE SERVICES OR LICENSEE’S OR ITS AUTHORIZED USERS’ ABILITY TO ACCESS THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EBREVIA DISCLAIMS, AND LICENSEE SHALL NOT HOLD EBREVIA RESPONSIBLE FOR, ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH ACTIONS OR FORCE MAJEURE AND EBREVIA SHALL TAKE COMMERCIALLY REASONABLE EFFORTS TO RESTORE SUCH SERVICES AS SOON AS PRACTICABLE FOLLOWING SUCH FORCE MAJEURE EVENT.

THIRD PARTY RIGHTS.

No rights under this Agreement shall be enforceable by any person not party to it except for those clauses that confer rights and benefits on to eBrevia’s Affiliates, affiliated parties, directors, officers, agents, employees and shareholders which may be enforced by such persons.

PUBLICITY.

eBrevia may use any testimonials as mutually agreed by both Parties. Moreover, Licensee agrees that eBrevia may use Licensee’s name and logo in its list of customers.

ENTIRE AGREEMENT.

These Terms and Conditions, together with the fee arrangement and the Proposal agreed between eBrevia and Licensee, constitutes the complete and exclusive statement of the terms, conditions and representations of the agreement between eBrevia and Licensee with respect to the Services and supersedes all other agreements with respect to the subject matter hereof. Logging in, Processing Unique Documents or otherwise utilizing the Services constitutes acceptance by Licensee of these Terms and Conditions. Any other terms which vary from, or conflict with, the Proposal or these Terms and Conditions shall be void.