General
Lexbe Channel Partner/Reseller AgreementThis Channel Partner/Reseller Agreement (“Agreement”) is made as of the __ day of December, 2014 (“Effective Date”), by and between Lexbe LC (“Lexbe”), with its principal place of business at 8701 MoPac Expressway, Suite 320, Austin, TX 78759 and___ (“Channel Partner”), with its principal place of business at ___. Definitions used in this Agreement are attached as Attachment 1. WHEREAS, Lexbe provides the following services for Channel Partner’s internal usage or resale: eDiscovery Platform+, eProcessing+, Lexbe Analytics+, Lexbe HighCapacity Processing+, and Lexbe Ancillary Services (collectively the “Lexbe Services”); and WHEREAS, Channel Partner is an eDiscovery and/or Litigation Support provider/service company and desires the right to use, market or resell the Lexbe Services. NOW, THEREFORE, in consideration of the premises, the parties agree as follows. 1. Services Offered by Lexbe. Lexbe hereby offers to provide to Channel Partner, as a channel partner and reseller, the Lexbe Services as follows: eDiscovery Platform+: Web-based eDiscovery hosted review application available as software-as-service (SaaS). eProcessing+: Web-based self-service eDiscovery hosted processing application available as SaaS. Lexbe Analytics+: Near duplicate groupings and technology assisted review, used as part of eDiscovery Platform+ or eProcessing+ accounts. Lexbe HighCapacity Processing+: High volume FTP batch-based eDiscovery processing. Lexbe Ancillary Services: Technical, professional and other services ancillary to the above. 2. Appointment as Channel Partner. Lexbe hereby appoints Channel Partner as an independent, non-exclusive authorized reseller of the Lexbe Services, including the non-exclusive, non-transferrable right to use Channel Partner Accounts, for the benefit of Channel Partner and Channel Partner’s Users, subject to the terms and conditions of this Agreement. Channel Partner hereby accepts such appointment, and agrees to utilize and resell the Lexbe Services, on the terms and conditions of this Agreement. Channel Partner will use reasonable business efforts to promote, use and resell the Lexbe Services. 3. Mutual Business Obligations. During the term of this Agreement, each party agrees that it shall perform the following duties and obligations: Conduct business in a professional manner that reflects favorably at all times on the the good name, goodwill and reputation of the other party. Not make any false, deceptive, misleading statements or other practices that are or might be detrimental or disparaging to the other party. Not make any representations with respect to the other party inconsistent with this Agreement. 4. Account Information and Customer Data. Lexbe does not own or make and claim to the Customer Data. Channel Partner and/or the Channel Partners Users, not Lexbe, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and right to use the Customer Data. Lexbe shall not be responsible or liability with respect to the Customer Data. 5. Confidentiality. The parties acknowledge and agree that each may be granted access to and acquire, Confidential Information. The Parties shall not divulge, disseminate, disclose or communicate to any person or entity any fact, knowledge or information related to Confidential Information, and shall hold the Confidential Information in trust in a fiduciary capacity for the sole benefit of the other Party and its successors and assigns. 6. Private Label Usage of Channel Partner Accounts. Channel Partner shall be entitled to use eDiscovery Platform+ and Lexbe eProcessing+ on a private basis, and this shall include, in a Channel Partner Account as requested: Branded Logo. Display of a Channel Partner logo on the upper left of each page. Custom Branded Log-In Page. A custom landing page including Channel Partner’s name, logo and custom description. Custom Aliased URL. Custom aliased URL access for log-in by Channel Partner’s Users. 7. Channel Conflict Protection. Channel Partner shall be entitled to register Channel Partner’s Active Leads with Lexbe under Lexbe’s Channel Partner Lead Program for protection from inconsistent messaging to prospective clients. Lexbe’s Channel Partner Lead Program includes: Lead Registration. A web form to register new Channel Partner Active Leads. Sales Support. Lexbe sales support of Channel Partner for a Channel Partner Active Lead for one year from registration. Lead Referral. Lexbe referral of any Channel Partner Active Lead to Channel Partner during the one year period. 8. Term, Renewal. This Agreement shall commence on the Effective Date and be effective for a term of one year from the Effective Date. It shall be automatically extended for further one-year terms unless either party gives written notice to the other at least 60 days before the expiration of the initial or any renewal term of the party's intent not to renew. 9. Support & Technical Services. Lexbe will provide free Customer Support, and offer paid Technical Services, as follows: Customer Support Directly to Channel Partner’s Administrators. Lexbe will provide Customer Support to Channel Partner Account Administers (up to 5 designated), without charge, pursuant to Lexbe’s Free Customer Support Policy. Matters outside the scope of Lexbe’s Free Customer Support policy, including emergencies, should be submitted to Technical Services, and is billable under Technical Services rates (specified in Attachment 3). Help Documentation. Lexbe will provide Channel Partner with copies of Lexbe’s help and technical resources documentation to serve as a basis for Channel Partner customization of documentation for Channel Partner’s Users, if desired. Channel Partner User Support Provided by Channel Partner. Channel Partner, and not Lexbe, will handle support for Channel Partner’s Users. Lexbe Technical Services. Lexbe may offer technical assistance to Channel Partner, and if requested by Channel Partner, to Channel Partner Users, as part of Lexbe Technical Services. 10. Trademark Use. Each of the parties may refer to and use the other’s Trademarks, so long as such reference and use is not misleading and complies with any reasonable guidelines issued by the trademark owner. Any use of Trademarks will enure to the benefit of the owner. 11. Intellectual Property. Lexbe, and its licensors, where applicable, own and shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Lexbe Technology, the Lexbe Content, and the Lexbe Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Channel Partner, Channel Partner Associated Persons, or Channel Partner’s Users relating to Lexbe Services. This Agreement is not a sale and does not convey to Channel Partner or Channel Partner’s Users any rights of ownership or Intellectual Property Rights in or related to Lexbe Services, the Lexbe Technology or the Lexbe Content. The Lexbe name, the Lexbe logo, and the product names associated with the Lexbe Services are trademarks of Lexbe, and no right or license is granted to use them, other than as provided in Section 10. Channel Partner and any of its agents shall not reverse engineer or access the Lexbe Services or the Lexbe Technology in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics, or (iii) copy any ideas, features, functions or graphics. 12. Service Level Agreement. Lexbe guarantees to Channel Partner that Channel Partner’s access to Channel Partner’s eDiscovery Platform+ Account will have Service Level Availability of at least 99.95%. If Channel Partner’s access to Channel Partner’s eDiscovery Platform+ Account is less than 99.95%, then Channel Partner will be entitled to a pro rata credit for charges during the period of unavailability, except that credit under this section shall not be applicable or available in connection with any failure or deficiency of Service Level Availability caused by or associated with Service Level Credit Exceptions. To receive a credit, Channel Partner must make a request by sending an email message to support@Lexbe.com. Each request in connection with this Service Level Agreement should include dates and approximate times of the unavailability of Channel Partner's eDiscovery Platform+ Account and must be received by Lexbe within ninety (90) days after Channel Partner’s eDiscovery Platform+ Account was not available. Credits under this section are the sole and exclusive remedy of Channel Partner with respect to any failure or deficiency in connection with Service Level Availability. 13. Account Billing. Lexbe will bill Channel Partner following the end of each calendar month for Channel Partner Account Usage of Lexbe Services during the prior month. Lexbe's Billing Calculations are attached as Attachment 2 and Channel Partner’s billing rates are attached as Attachment 3. The rates will not be changed for the first six months of this Agreement, but thereafter may be changed by Lexbe on 30 day’s advance notice. Lexbe’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Channel Partner shall be responsible for payment of all such taxes, levies, or duties, Payments are due net 30 from invoice date (usually beginning of the month, even if billed later). Once incurred, payment obligations for Lexbe Services are non-cancelable and all amounts paid are nonrefundable. With respect to any particular job, order or services part of Lexbe Services, Lexbe may require that Channel Partner present an approved purchase order, provide a deposit, prepay for services, or pay with a valid credit card, as a condition to offering or providing any Lexbe Services, if Lexbe in good faith deems it advisable. Delinquent amounts owed are subject to interest at the rate of 1% per month, or the maximum permitted by law, whichever is less. 14. Account Activity. Channel Partner is responsible for all activity occurring in the Channel Partner Accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of Lexbe Services, including those related to data privacy, international communications and the transmission of technical or personal data. Channel Partner shall: (i) encourage Channel Partner Users to keep their user login password confidential, not share their password with any other person, maintain effective password security, use complex passwords that cannot be easily guessed, and change their passwords periodically, as needed to maintain the confidentiality of their Customer Data and the security of their access to Lexbe Services, (ii) notify Lexbe immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) report to Lexbe immediately and use reasonable efforts to stop immediately any improper use of eDiscovery Platform+ that is known or suspected by Channel Partner or Channel Partner Users; and (iv) not knowingly allow a Channel Partner User to impersonate another Lexbe user or provide false identity information to gain access to or use Lexbe Services. Channel Partner shall not take any action in connection with Lexbe Accounts that is prohibited by this Agreement. Channel Partner (or Channel Partner’s User) should also maintain original or periodic backup copies of all Customer Data as needed. 15. Suspension & Termination. Either party may terminate this Agreement for any material breach of the Agreement that is not cured to the non-breaching party's satisfaction within 30 days of written notice that specifies the breach. Lexbe reserves the right to suspend Lexbe Services if payment on the Channel Partner Accounts becomes delinquent. Any breach of Channel Partner’s payment obligations (after 30 days from invoice date) or unauthorized use of the Lexbe Technology or Lexbe Services (at any time) by Channel Partner will be deemed a material breach of this Agreement. Lexbe has no obligation to retain the Customer Data upon termination of this Agreement, and may delete Customer Data from from Channel Partner’s Lexbe Account within ten (10) days following termination. Prior to termination of this Agreement or any of Channel Partner’s Accounts, Channel Partner and Channel Partner's Users should download and save any Customer Data that Channel Partner or Channel Partner's Users wish to retain. 16. Data Archiving & Export. Channel Partner and Channel Partner Users may delete or archive documents and cases at any time from a Lexbe Account. The following options are available: Delete Documents and Data in an Account. Documents will be non-accessible immediately by Channel Partner’s Users on deletion. Deleted data will be subject to removal from backup rotation after 60 days. Prior to then deleted documents or cases possibly can be recovered by Technical Services. Export Documents and Data from an Account. Documents may be downloaded from a eDiscovery Platform+ Account and eProcessing+ Account at any time by Channel Partner or Channel Partner Users as a Production or Briefcase. Very large downloads may require Lexbe Technical Services assistance. Archive Documents. Channel Partner may request that documents be archived with Lexbe Nearline or Archive storage services, specified in the Channel Partner Pricing Schedule. 17. Feature Requests and Custom Development. Lexbe encourages Channel Partner to request features that might improve the Lexbe Technology. Lexbe will assess and prioritize feature requests and respond according to its assessment of general applicability. Channel Partner can also request custom development, custom features and feature prioritization, and Lexbe may offer to do this as Custom Development (see Schedule 3). 18. Mutual Non-Solicitation. Each party agrees, that without the other party’s written consent, it will not during the term of this Agreement (including renewals) and for one year thereafter, (a) solicit for employment, contract or engagement of any kind any employee or contractor of the other, (b) hire or employment, contract or other engagement any employee or contractor of the other party, (c) induce or influence any employee or contractor of the other party to terminate employment or terminate contractual relations. 19. Representations and Warranties. Each party represents and warrants that such party has the legal power and authority to enter into this Agreement. Lexbe represents and warrants that it will use commercially reasonable efforts to provide access to the Channel Partner Accounts by Channel Partner’s Users. Channel Partner represents and warrant that: (a) Channel Partner and Channel Partner’s Users will not provided any false information to gain access to Channel Partner Accounts, (b) the Channel Partner Accounts will be used only for the Permitted Use, (c) Channel Partner and Channel Partner’s Users have right and authority to access and use the Customer Data in connection with the Lexbe Services. 20. Indemnification. Channel Partner shall indemnify and hold Lexbe and the Lexbe Associated Persons harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, in connection with, or related in any way to: use of the Customer Data, harm to a third party in connection with the Customer Data, breach by Channel Partner’s Users of a Lexbe User Agreement, or use by Channel Partner Users of Lexbe Services other than for a Permitted Use; provided in any such case that (a) Lexbe gives written notice of the claim to Channel Partner; (b) Lexbe gives Channel Partner sole control of the defense and settlement of the claim, provided that Channel Partner may not settle any claim unless Channel Partner obtains unconditionally releases of Lexbe and Lexbe Associated Persons of all liability and such settlement does not materially adversely affect Lexbe’s business or services; (c) Lexbe provides to Channel Partner all available information and reasonable assistance; and (d) Lexbe has not compromised or settled such claim. Lexbe shall indemnify and hold Channel Partner and Channel Partner Associated Persons harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, in connection with, or in any way related to a claim alleging that the Lexbe Services directly infringe a copyright, a trademark of a third party, or a U.S. patent issued as of the Effective Date; provided in any such case that Channel Partner (a) gives written notice of the claim to Lexbe; (b) Channel Partner gives Lexbe sole control of the defense and settlement of the claim, provided that Lexbe may not settle any claim unless Lexbe obtains unconditionally releases of Channel Partner and Channel Partner Associated Persons of all liability and such settlement does not materially adversely affect Channel Partner’s business or services; (c) provides to Lexbe all available information and reasonable assistance; and (d) has not compromised or settled such claim. Lexbe shall have no indemnification obligation, for claims arising from any infringement arising from the combination of eDiscovery Platform+ with any of Channel Partner’s products, services, software, hardware or business processes. The liability of parties under this section may be limited in amount or otherwise by other sections of this Agreement. 21. Limitations in Services. Lexbe shall have full discretion to reject any particular request for the Lexbe Services. Channel Partner understands, agrees and accepts that Lexbe has not guaranteed any particular standard or level of Services other than the Account Availability, and that all services and software, are inherently imperfect and subject to error. Channel Partner and Channel Partner's Users can and should maintain their own archival copies of the Customer Data. Customer Data can be periodically downloaded by Channel Partner or Channel Partner Users from the Channel Partner Accounts as needed to maintain archival or backup copies. Also, the Lexbe Technology contains bugs, defects and errors (like substantially all computer software of any complexity) and these errors can lead to errors in the Lexbe Services. The standard of conduct and care in connection with the Lexbe Services will be a commercially reasonable care standard (subject to limits in this Agreement), and not a best efforts standard. 22. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFIED IN SECTION 19, LEXBE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY OF ANY KIND, WHETHER IN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, EVEN IF LEXBE OR LEXBE ASSOCIATED PERSONS WERE INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, LEXBE AND LEXBE ASSOCIATED PERSONS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE LEXBE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) THE LEXBE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS, STANDARDS, NEEDS OR EXPECTATIONS (EVEN IF KNOWN), (C) LEXBE SERVICES ARE BUG-FREE, ERROR-FREE, OR DEFECT-FREE OR THAT BUGS, ERRORS OR DEFECTS WILL BE CORRECTED. THE LEXBE SERVICES AND ALL LEXBE CONTENT IS PROVIDED TO CHANNEL PARTNER AND CHANNEL PARTNER’S USERS STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND NON-INTERFERENCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LEXBE AND LEXBE ASSOCIATED PERSONS. 23. DELAYS OR FAILURES. THE OBLIGATIONS OF A PARTY TO THIS AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS PARTICULAR OR COMMON IN THE USE OF COMPUTERS, THE INTERNET AND ELECTRONIC COMMUNICATIONS. NO PARTY IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 24. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL A PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER RELATED DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE LEXBE SERVICES OR THIS AGREEMENT, EVEN IF THE PERSON FROM WHICH OR WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER AN ACTION IS SOUGHT IN CONTRACT, NEGLIGENCE, OTHER TORT OR OTHERWISE. LEXBE UTILIZES THIRD PARTY SOFTWARE LIBRARIES AND SERVICES AS PART OF THE LEXBE SERVICES AND THE LEXBE TECHNOLOGY AND WILL HAVE NO LIABILITY IN CONNECTION WITH ANY FAILURE OF LEXBE SERVICES IN CONNECTION WITH THOSE LIBRARIES OR SERVICES FOR ANY REASON, INCLUDING LEXBE’S SELECTION OF THE SOFTWARE LIBRARIES OR SERVICES. IN NO EVENT SHALL LEXBE’S AGGREGATE LIABILITY IN CONNECTION WITH ANY PARTICULAR DISPUTE EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CHANNEL PARTNER IN CONNECTION WITH THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN LEXBE AND CHANNEL PARTNER AND. LEXBE’S PRICING HEREIN REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 25. NEGLIGENCE AND RECKLESSNESS. ANY DISCLAIMER OF WARRANTY OR LIMITATION OF LIABILITY OR DAMAGES IN THIS AGREEMENT WILL APPLY EVEN IF THE INDIVIDUAL OR ENTITY DISCLAIMING A WARRANTY OR LIMITING LIABILITY OR DAMAGES WAS NEGLIGENT, GROSSLY NEGLIGENT OR RECKLESS. 26. NO LIABILITY OF ASSOCIATED PERSONS. IN NO EVENT WILL ANY LEXBE ASSOCIATED PERSONS OR CHANNEL PARTNER ASSOCIATED PERSONS HAVE ANY LIABILITY OF ANY KIND, IN RELATION TO ANY MATTER INVOLVING LEXBE OR RELATED TO THIS AGREEMENT OR THE LEXBE SERVICES, AND THE PARTIES AGREE TO LOOK SOLELY TO THE PARTIES TO THIS AGREEMENT FOR SATISFACTION OF ANY SUCH CLAIM, AND TO NOT MAKE ANY SUCH CLAIM OR BRING ANY SUCH ACTION AGAINST ASSOCIATED PERSONS. ANY SUCH CLAIMS ARE HEREBY WAIVED. IF SUCH A CLAIM IS MADE IT WILL BE DISMISSED BY THE APPLICABLE TRIBUNAL. 27. REDUCED STATUTE OF LIMITATIONS. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE LEXBE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. 28. Local Laws and Export Control. Lexbe Technology may be subject to United States export controls lexbe Technology may not be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using Lexbe Services, Channel Partner represents and warrants that each of Channel Partner’s Users are not located in, under the control of, or a national or resident of any such country or on any such list. 29. Notice. All notices required under this Agreement shall be considered as sent upon delivery to the address of the relevant party as set forth in this Agreement. Each party agrees to provide written notice to the other at least 15 days prior to any change in the contact information set forth in this Agreement. 30. Assignment. No party may assign this Agreement without written consent of the other parties, except such consent is not required to the successor of all or substantially all of the assignor’s business, assets and liabilities. 31. Disputes Resolution. If a dispute arises out of or relates to this Agreement, or the breach thereof, or relating to the use of the Lexbe Services, or to any acts or omissions for which Channel Partner or Channel Partner’s Users may contend Lexbe or Lexbe Associated Persons are or may be liable, including but not limited to any claim or controversy as to arbitrability (collectively, the “Dispute”), but excluding a Technology Injunction Action or an Interpleader Action, and if the Dispute cannot be amicably settled, then THE DISPUTE SHALL BE FINALLY, AND EXCLUSIVELY, SETTLED BY ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). The arbitration shall be held before one arbitrator under the commercial arbitration rules of the AAA in force at that time, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will conduct the arbitration in an expeditious manner, and will set and enforce limits as to the extent of discovery, number of witnesses, length of testimony, consideration of motions, and other matters, proportional to the size and extent of claims, and to meet the goals of commercial arbitration to adjudicate disputes in a fast, efficient and cost-effective manner. To begin the arbitration process, a party must make a written demand of arbitration. Should a Dispute arise and should the arbitration provisions above become inapplicable or unenforceable, or in any instance of any lawsuit between Channel Partner, Channel Partner’s Users, Lexbe and/or or Associated Persons, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Austin, TX, and the matter will be heard by a judge without jury, and THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL. If a party employs attorneys to enforce any right in connection with any Dispute, the prevailing party shall be entitled to recover reasonable attorneys’ fees. The prevailing party will be determined to be the party who has most successfully proven the party’s claims in the matter, not merely the party who has received a positive reward. 32. Interpleader Available. If there is a dispute regarding ownership of the Customer Data, Channel Partner authorizes Lexbe, on behalf of Channel Partner and Channel Partner’s Users, to bring an Interpleader Action and to have its legal and other expenses in connection with Interpleader Action reimbursed. 33. No Legal Partnership or Joint Venture. No joint venture, partnership, employment, or agency relationship exists between Channel Partner and Lexbe as a result of this Agreement or use of the Lexbe Services. 35. No Waiver. The failure by any party to enforce any right or provision in this Agreement shall not constitute or operate as a waiver of such right or provision by such party unless specifically acknowledged and agreed to by such party in writing. 35. Survival. The provisions of Sections 19-27, 31-32 will survive termination of this Agreement for any reason. 36. Agreement Interpretation. The failure by any party to enforce any right or provision in this Agreement shall not constitute or operate as a waiver of such right or provision by such party unless specifically acknowledged and agreed to by such party in writing. Whenever possible, each provision of this Agreement shall be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or is invalid under applicable law, it shall be ineffective only to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. If a party is entitled under this Agreement to make a decision or determination, or take or refuse an action, then that decision, determination or action may be made in such party’s sole discretion, unless this Agreement provides expressly and specifically to the contrary. This Agreement will not be construed in favor of one party or another, no matter who drafted any provision. 37. Governing Law. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. 38. Entire Agreement. This Agreement comprises the entire agreement between Channel Partner and Lexbe regarding the subject matter contained herein, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties. This Agreement supersedes and controls, where inapplicable, over Lexbe’s online agreements and terms of use for users. All referenced attachments to this Agreement are incorporated by reference into this Agreement the same as if copied in full. Lexbe Channel Partner/Reseller Agreement Attachment 1: Agreement Definitions “Affiliate” means any individual or entity, who or that, directly or indirectly, controls, is controlled by, or is under common control with, the subject individual or entity. Control includes ownership or voting control of more than 50% of the voting, equity securities of a subject entity. “Agreement” means this Channel Partner & Partner Agreement, as may be updated from time to time pursuant to this Agreement. “Associated Persons” means the officers, directors, owners, employees, independent contractors, attorneys, agents and Affiliates. “Billing Calculations” means the calculation used for the billing of Lexbe Accounts to Channel Partner, as described in Attachment 2 to this Agreement. “Channel Partner” means the entity described as Channel Partner in the first paragraph on the Agreement. If Channel Partner is using Lexbe Services on behalf of an Affiliate as an agent of the Affiliate, then Channel Partner refers as well to the Affiliate and the Affiliate is bound by this Agreement. “Channel Partner Account Usage” is defined in the Billing Calculations. “Channel Partner’s Account Administrator(s)” means one or more individuals granted elevated rights in the Channel Partner Accounts by or at the direction of Channel Partner, including adding and removing cases and Channel Partner's Users, instructing Lexbe regarding the Channel Partner Accounts, and otherwise administering the use of eDiscovery Platform+ or eProcessing+ on behalf of Channel Partner and Channel Partner’s Users. Channel Partner’s Account Administrators may also designate other Channel Partner Account Administrators on behalf of Channel Partner. “Channel Partner Accounts” means the eProcessing+ Accounts and eDiscovery Platform+ Accounts. “Channel Partner Active Leads” means existing Channel Partner’s customers, or prospective customers, for whom Channel Partner has offered to resell Lexbe Services. “Channel Partner Lead Program” means Lexbe’s program to register Channel Partner Active Leads, for a period of up to one year following registration of the customer or prospective customer with Lexbe, under Lexbe’s channel conflict protection procedures. To be accepted into the Channel Partner Lead Program, the customer or prospective customer must not be an existing direct lead or a registered lead from another channel partner. Channel Partner Active Leads are registered per office or location of organizations with more than one office or location. “Channel Partner Pricing Schedule” means the pricing schedule attached as Attachment 3 to the Agreement. “Channel Partner’s User(s)” means Channel Partner's Account Administrators and other persons have been supplied user identifications, or otherwise authorized or enabled to be users in Channel Partner Accounts, including by by Lexbe at Channel Partner Account Administrator’s request. “Confidential Information” means information and knowledge concerning the business and operations of each party, including, without limitation, information regarding financial position, customers, customer lists, and suppliers, past, present or future plans with respect to the business of the parties, bids, relationships, negotiations, and techniques in bidding and negotiating, current or future advertising or promotion plans or programs of the parties or its affiliates, and processes, plans, software, technology, methods of doing business, and special needs of referral sources and customers. “Customer Data” means means all electronic documents and other electronic files and data, related to or uploaded to Channel Partner’s Accounts, or any other case-related data, information or material provided or submitted by a Channel Partner or Channel Partner’s Users to Lexbe in the course of utilizing the Lexbe Services, but excluding any Lexbe Content. “Custom Development” means any custom software development, bug fixes, or enhancements, done by Lexbe at the specific request for the benefit of Channel Partner or Channel Partner’s customers, and is billable under Custom Development rates as specified in Attachment 3. “eDiscovery Consulting Services” means electronic discovery consulting or or project management services offered by Lexbe, and is billable under eDiscovery Consulting rates in Attachment 3. “eDiscovery Platform+” means Lexbe’s web-based eDiscovery hosted review application available as SaaS, developed, operated, and maintained by Lexbe, accessible via http://www.Lexbe.com or another designated web site or IP address, and comprising part of the Lexbe Technology and the Lexbe Content, to which Channel Partner and channel Partner’s Users are being granted access under this Agreement. “eDiscovery Platform+ Account(s)” means one or more separate accounts maintained by Channel Partner to utilize eDiscovery Platform+, on behalf of Channel Partner and Channel Partner’s Users. “Effective Date” is defined in the first paragraph of the the Agreement. “eProcessing+” means Lexbe’s web-based eDiscovery hosted processing application available as SaaS, developed, operated, and maintained by Lexbe, accessible via http://www.Lexbe.com or another designated web site or IP address, and comprising part of the Lexbe Technology and the Lexbe Content, to which Channel Partner and Channel Partner’s Users are being granted access under this Agreement. “eProcessing+ Account(s)” means one or more separate accounts maintained by Channel Partner to utilize the eProcessing+, on behalf of Channel Partner and Channel Partner’s Users. "Free Customer Support Policy" means Lexbe's policy for providing limited free customer support to Users of Lexbe Services. Matters outside of the Lexbe Free Customer Support policy, including emergencies, should be submitted to Technical Services, and is billable under Technical Services rates in Attachment 3. As of the Effective Date, The Lexbe Customer Support Policy includes the following: a. Customer Support is ticket-based, and tickets must be submitted by webform, with the exception of User inability to log-in or access a eDiscovery Platform+ Account or an eProcessing+ Account. Initial service response target is by the end of the next business day. b. With respect to eDiscovery Platform+ and eProcessing+ Accounts, Customer Support covers bug reports, feature requests, and generalized usage of these applications only. c. For Lexbe HighCapacity Processing+, Customer Service covers job ordering, parameters, job status, job completion, and billing questions. d. Free Customer Service does not cover data issues, data exceptions and data handling, specific program usage, training, case or project specific matters, and anything covered by Technical Services or eDiscovery Consulting Services. Matters outside the scope of Customer Service should be submitted to Technical Services or eDiscovery Consulting Services should be requested. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, including without limitation software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information. “Interpleader Action” means an action by Lexbe to interplead Customer Data to a court or other tribunal of competent jurisdiction in connection with a dispute over ownership of Customer Data. “Lexbe“ means Lexbe LC, a Texas limited liability company. “Lexbe Ancillary Services” means Custom Development or other activities requested of Lexbe or Affiliates by Channel Partner or customers in connection with Channel Partner Accounts. “Lexbe Analytics+” means NearDup Groupings+ and Assisted Review+, when used as part of Channel Partner Accounts, with pricing specified in Attachment 3. “Lexbe Content” means the written, audio and visual information, documents, software, products and services contained or made available to Channel Partner or Channel Partner's Users in the course of using the Lexbe Services, including the Lexbe Technology, but excluding the Customer Data. Lexbe HighCapacity Processing+ means high-volume eDiscovery processing services, including, among other things, high-volume processing from native files to PDF or TIFF, OCR, NearDuplicate Groupings, and Assisted Review Groupings, with files and data transferred in batches by Secure FTP. “Lexbe Services” means eDiscovery Platform+, eProcessing+, Lexbe High Capacity Processing+ and Lexbe Ancillary Services. “Lexbe Technology” means Lexbe’s Intellectual Property Rights used by Lexbe in connection with the Services or this Agreement, or otherwise made available to Channel Partner or Channel Partner’s Users by Lexbe in connection with the Services. Lexbe Technology includes any Custom Development and the resulting Intellectual Property Rights done at the request of Channel Partner. “Lexbe User Agreement” means the online user agreement or terms of use, required for login or use by users of eDiscovery Platform+ or eProcessing+ services. “Permitted Use” means use of eDiscovery Platform+, eProcessing+ or other Lexbe Services for a legal purpose in connection with a party’s bona fide litigation or information governance needs, either as a principal, agent, employee, attorney or consultant. The Permitted Use does not include use under false pretenses, a use involving misrepresentation to Lexbe, or use by a competitor of Lexbe. “Service Level Availability” means access to a eDiscovery Platform+ Account at least 99.95% of the time in a billing month, based on 24-hour days for the number of days in the subject month from the Internet in the United States. “Service Level Credit Exceptions” means (a) circumstances beyond Lexbe’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, (b) unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or service, unless such failure is substantially caused by Lexbe; (c) scheduled maintenance and emergency maintenance and upgrades; (d) DNS failure outside the direct control of Lexbe; (d) Channel Partner's or Channel Partner’s Users’ acts or omissions (or acts or omissions of others engaged or authorized by Channel Partner or Channel Partner’s Users), including, without limitation, any negligence, willful misconduct, or use of eDiscovery Platform+ in breach of this Agreement; (e) outages elsewhere on the Internet that hinder access to the Channel Partner’s Account. “Technical Services” means any electronic discovery litigation support services provided by Lexbe at the request to Channel Partner or Channel Partner’s Users. These include exception handling, working with password protected or corrupt, partially-corrupt, or other files, PDFs or mail archives that do not successfully convert automatically or unattended, loadfile manipulation, correcting or modifying delivered loadfiles, converting non-standard loadfiles, handling or assisting in data transfers, data copying or duplication, manual or semi-automatic file conversion, review or manipulation file or data research or analysis, training, usage, customization or administration of eDiscovery Platform+ or eProcessing+, cases or data, manual or semi-automated file conversions, transferring cases between accounts or in or out of hibernation, user administration, assistance with uploads, processings, downloads, or productions. recovering deleted cases or documents, user and user right administration, setting up custom fields and saved searches, moving or copying cases between accounts to copying files or data between cases, field or data updating, assisting with reporting or preparing reporting, reviewing discovery specifications, deliverables, consulting with clients or third parties and client request regarding technical aspects of eDiscovery processes, procedures or output, related conferences or meetings, or other technical services or litigation support of clients for cases, jobs or projects. “Technology Injunction Action” means a proceeding brought by Lexbe before any tribunal with jurisdiction to request an injunction and/or a temporary restraining order, to protect Lexbe Technology. “Trademarks” means all names, marks, logos, designs, trade dress and other brand designations used by a party in connection with its products and services. Lexbe Trademarks include ‘Lexbe’ and the Lexbe Services. eDiscovery Platform+ Accounts Flex Account Billing. A Lexbe eDiscovery Platform+ Account will be billed monthly in an amount equal to the data stored in the account, including documents and ESI stored in the account, pursuant to the Channel Partner Pricing Schedule, and this will be Channel Partner’s Account Usage for the month for each such account. Storage Based Calculation. We calculates the billable storage for the month for an Account as the peak storage used, in GBs, rounded up to the next nearest whole GB. Data size increases beyond the amount uploaded because of decompression, normalized PDF and placeholder file creation, text extraction, OCR, index creation and update, SQL database creation and update, production creation and briefcase creation. All calculations are rounded up to the next GB for storage and billing calculation. Storage is increased by the following: >The GB size of Document ESI uploaded. >The GB size of PDFs and created from Document ESI (generally about the same as the originals, but can be larger in some instances or smaller if a higher percentage of Placeholder files are created. >The GB size of the search index, including text extracted from ESI and from the PDFs after OCR and included in the search index (capped at 35% of Document ESI for billing purposes). >The GB size of the SQL database allocable to the case. >The GB size of Productions and Briefcases created. Deletions. If data, a case or account is deleted, the effect will not be reflected in the next monthly billing, which is based on the highest usage in the prior month. Instead deletions will be reflected in succeeding months. An account or case cancellation or deletion will be billed for one succeeding month reflecting the highest of usage for the month of deletion or cancellation. No User or Case Fees. There are no set-up or ongoing case or user fees in an eDiscovery Platform+ Account, so long as self-administered by an Account Administer(s) for the Account. No Upload Charge. In eDiscovery Platform+ Accounts, there is no billing charge for the amount of uploads directly, although this will increase the storage size of accounts. Lexbe Analytics. If Lexbe Analytics is ordered on a case, then the charge for Lexbe Analytics will be charged per the Channel Partner Pricing Schedule. Billing Calculations -- eProcessing+ Accounts eProcessing+ Account Billing. eProcessing+ Accounts will be billed monthly an amount equal to the ESI Uploaded (GBs) and the Storage-Based Amount (GBs), this will be Channel Partner’s Account Usage for the month for each such account. Upload Based Calculation. For eProcessing+ Accounts, we calculate the billable ESI Upload Size for the month as the total amount of ESI uploaded to the account by a User or by Lexbe (if requested), in GBs, rounded up to the next nearest whole GB, after decompression of any ZIP or RAR archive files. Long-Term Storage Based Calculation. For an eProcessing+ Account, the is no monthly storage based billing component so long as the documents in the case are completely deleted in the same calendar month as uploaded (in-and-out processing). If an eProcessing+ Account is used to store data into the succeeding month, then there will be storage based usage charges the same as in the eDiscovery Platform+ Account. Executed as of the Effective Date Lexbe Channel Partner Lexbe LC BeyondRecognition, LLC By: _____________________________ Gene Albert Its Principal By: _____________________________ John Martin Its President --- Master Services Agreement Effective Date: June 25, 2011 BY LOGGING ON AND USING THE EDISCOVERY PLATFORM, OR BY INCORPORATING BY REFERENCE THIS AGREEMENT INTO ANOTHER AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE NOT AN AUTHORIZED USER. EDISCOVERY PLATFORM IS PROTECTED BY COPYRIGHT AND OTHER LAW. ANY IMPROPER ACCESS OR RELATED ACTIVITY IS STRICTLY PROHIBITED. LEXBE RESERVES ALL RIGHTS TO TAKE APPROPRIATE CIVIL, CRIMINAL OR INJUNCTIVE ACTION. 1. Definitions: “Account” means the right of the Primary Licensee to utilize Lexbe eDiscovery Platform pursuant to this Agreement, and may include access rights for one or more Account Administrators and Authorized Users, to one or more Cases, and including online storage and access to documents, other files and other stored data. “Account Administrator” means one or more individuals granted elevated rights in the Account by or at the direction of the Primary Licensee, including adding and removing Cases and Authorized Users, instructing Lexbe regarding the Account and otherwise administering the use of Lexbe eDiscovery Platform on behalf of the Primary Licensee. An Account Administrator can also designate other Account Administrators on behalf of the Primary Licensee. “Account License” means the right as defined under this Agreement to use Lexbe eDiscovery Platform for an Account. “Account License Charges” means Lexbe’s charges to the Primary Licensee for an Account License. “Affiliate” means any individual or entity, who or that, directly or indirectly, controls, is controlled by, or is under common control with, the subject individual or entity. Control includes ownership or voting control of more than 50% of the voting, equity securities of a subject entity. “Agreement” means this Lexbe eDiscovery Platform services agreement, as may be updated from time to time pursuant to this Agreement. “Authorized User(s)” means a Primary Licensee’s Account Administrators, employees, representatives, contractors, consultants, agents or guests, or other persons, who are authorized to use Lexbe eDiscovery Platform by an Account Administrator, and have been supplied user identifications and passwords by an Account Administrator (or by Lexbe at an Account Administrator’s request). “Case” means a Proceeding that an Account Administrator sets up in the Account, or directs Lexbe to set up, or for which Customer Data is added to an Account. “Client” means an individual, organization or other entity, that is a party to or involved in a Case which has been set up on its behalf at the direction of an Account Administrator, acting as an attorney, expert, or in another representative capacity. “Customer Data” means the Litigation Materials and any other Case-related data, information or material provided or submitted by an Authorized User to Lexbe eDiscovery Platform in the course of using Lexbe eDiscovery Platform, but excluding any Lexbe Content. “eDiscovery Services” means any electronic discovery litigation support services provided by Lexbe subject to Lexbe’s eDiscovery Services Agreement, available at www.Lexbe.com/hp/a/ediscovery-services-agreement.htm. “Effective Date” means the earlier of the date this Agreement is accepted by a User, or the first date a User begins using Lexbe eDiscovery Platform. “Hibernation” refers to an Account in which the Primary Licensee or any Administrator has elected to maintain in a storage-only mode, with no User access during the period of Hibernation. “Initial License Term” means the first month or other period during which a Primary Licensee is authorized to use or obligated to pay for Lexbe eDiscovery Platform pursuant to an Account. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, including without limitation software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information. “Interpleader Action” means an action by Lexbe to interplead Customer Data to a court or other tribunal of competent jurisdiction in connection with a dispute over ownership of Customer Data. “Lexbe“, “we” or “us” means Lexbe LC, a Texas limited liability company, 3801 N. Capital of TX Hwy E240/306, Austin, TX 78746. “Lexbe Associated Persons” means the officers, directors, owners, employees, independent contractors, attorneys, agents and Affiliates of Lexbe. “Lexbe Content” means the written, audio and visual information, documents, software, products and services contained or made available to the Primary Licensee or Authorized Users in the course of using Lexbe eDiscovery Platform, including the Lexbe Technology, but not including the Customer Data. “Lexbe eDiscovery Platform” means Lexbe’s online litigation document management application, developed, operated, and maintained by Lexbe, accessible via http://www.Lexbe.com or another designated web site, IP address, or ancillary online or offline products and services provided to the Primary Licensee or Authorized Users by Lexbe, to which an Authorized User is being granted access under this Agreement, including the Lexbe Technology and the Lexbe Content. “Lexbe Technology” means Lexbe’s Intellectual Property Rights used by Lexbe or made available to the Primary Licensee or Authorized Users by Lexbe in connection with the Services. “License Term(s)” means the period(s) during which the Primary Licensee or Authorized Users maintain an active Account License to use Lexbe eDiscovery Platform pursuant to the applicable Order, including the Initial License Term and any and all renewal terms. “Litigation Materials” means all electronic documents and other electronic files and data, related to a Case included in the Account, added, provided or submitted by the Primary Licensee or Authorized Users to Lexbe eDiscovery Platform. “Order” means the record evidencing the submission or request for use of Lexbe eDiscovery Platform, or an Account, including any sufficient individual or combination of online or written forms, invoices, receipts, purchase orders, statements, quotes, email or written communications, or submission of a deposit, payment or payment information to Lexbe. In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement shall prevail. “Other Services” means services or other activities requested of Lexbe or Affiliates by the Primary Licensee or an Account Administrator, or services required of Lexbe or Affiliates in connection with a Proceeding involving a Case, the Customer Data, or any Authorized Users, which services or other activities may include without limitation subpoena compliance, evidence recovery, data recovery, media or data transfer, time spent preparing for and participating in depositions, travel, expert witness services, or other litigation matters within Lexbe’s expertise or knowledge, but do not include the eDiscovery Services. “Permitted Use” means use of Lexbe eDiscovery Platform by litigation professionals (lawyers, paralegals, expert witnesses and consultants, staff), and their clients, for litigation support in preparation for a Proceeding in which a litigation professional has been retained or a client is a party, or another use that a principal of Lexbe has approved in writing. The Permitted Use does not include use under false pretenses, a use involving misrepresentation to Lexbe, or use by a competitor of Lexbe. “Primary Licensee” means the individual or entity paying for an Account License as reflected in the Order or in Lexbe’s billing records, or signing up for a Promotional Account. If an individual is reflected as responsible for paying for the Account, then Primary Licensee shall include such individual and also any other person, company or entity, on whose behalf the individual is acting in utilizing Lexbe eDiscovery Platform. If the Primary Licensee is using Lexbe eDiscovery Platform on behalf of an Affiliate as an agent of the Affiliate, then Primary Licensee refers as well to the Affiliate and the Affiliate is bound by this Agreement. “Proceeding” means an actual or anticipated lawsuit, arbitration, mediation, administrative proceeding in a court of law or before an administrative body or arbitration or mediation organization, in which a legal remedy or outcome is sought. “Promotional Account” means an Account that Lexbe may make available from time to time on a trial or other promotional basis to new Primary Licensees and Authorized Users. Promotional Accounts may be of limited duration as determined by Lexbe and may be subject to other restrictions. “Services” means Lexbe eDiscovery Platform and the Other Services. “Technology Injunction Action” means a Proceeding brought by Lexbe before any tribunal with jurisdiction to request an injunction and/or a temporary restraining order, to protect Lexbe Technology. “Unauthorized User(s)” means individuals accessing Lexbe eDiscovery Platform who are not Authorized Users. “User(s)” means Authorized Users and Unauthorized Users. If a User is using Lexbe eDiscovery Platform on behalf of an Affiliate, then ‘User’ refers as well to the Affiliate and the Affiliate is bound by this Agreement. “You” refers to any User logging in and accessing or using Lexbe eDiscovery Platform 2. License & Grant Restrictions Lexbe hereby grants to the Primary Licensee and Authorized Users a non-exclusive, non-transferable, worldwide right to use Lexbe eDiscovery Platform, solely for the Permitted Use in connection with the Primary Licensee’s Account, subject to the terms and conditions of this Agreement. Except for the Authorized Users, no other Users are permitted without specific express written permission by Lexbe. Except for the Permitted Use, no other use of Lexbe eDiscovery Platform is permitted. All rights not expressly granted to an Authorized User are reserved by Lexbe. The Primary Licensee or a User shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Lexbe eDiscovery Platform or the Lexbe Content in any way; (ii) modify or make derivative works based upon Lexbe eDiscovery Platform or the Lexbe Content; or (iii) reverse engineer or access Lexbe eDiscovery Platform or the Lexbe Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of Lexbe eDiscovery Platform, or (c) copy any ideas, features, functions or graphics as Lexbe eDiscovery Platform. The Primary Licensee and Authorized Users may use Lexbe eDiscovery Platform only for a Permitted Use and the Primary Licensee and Users shall not: (i) interfere with or disrupt the integrity or performance of Lexbe eDiscovery Platform or the data contained therein; (i) attempt to gain unauthorized access to Lexbe eDiscovery Platform or its related systems or networks; (iii) use Lexbe eDiscovery Platform in violation of this Agreement, any Lexbe policy or applicable law. The terms of this Agreement constitute an offer by Lexbe to the Primary Licensee and Authorized Users to utilize Lexbe eDiscovery Platform exclusively upon the terms and conditions set forth in this Agreement. No contrary or additional terms or conditions of proposed by the Primary Licensee or Authorized Users will be accepted by Lexbe and any such proposed contrary or additional terms are to be construed as proposals for addition to this Agreement which are hereby rejected unless otherwise indicated in a written instrument executed by a principal of Lexbe making specific and express reference to this Agreement and the contrary or additional term proposed by the Primary Licensee or Authorized Users. The use of Lexbe eDiscovery Platform by the Primary Licensee or Authorized Users, or the payment by the Primary Licensee for the Services, shall be deemed unqualified acceptance of the terms and conditions included in this Agreement. 3. Customer Data Ownership Lexbe does not own or make claim to any of the Customer Data. The Primary Licensee and/or the Authorized Users, not Lexbe, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Customer Data. 4. Customer Data Confidentiality Lexbe agrees and understands that the Customer Data are intended to be confidential, and will take reasonable steps to assure that the Customer Data stored on Lexbe eDiscovery Platform are not inappropriately disclosed. Lexbe understands that the Customer Data may be subject to attorney-client privilege or be attorney work product, and agrees to hold such materials as an agent of the attorney or attorneys handling any Proceeding in connection with the Customer Data. Subject to applicable law or court order, Lexbe agrees not to disclose the Customer Data to any person or entity other than to the Primary Licensee, an Authorized User, or as an Authorized User authorizes or instructs. If access to Customer Data is sought by a third party, Lexbe will promptly notify the Primary Licensee or an Account Administrator of such action, tender to the Primary Licensee Lexbe’s defense responding to the request and cooperate with the Primary Licensee concerning Lexbe’s response. 5. Service Level Agreement Lexbe guarantees to the Primary Licensee that the Primary Licensee’s access to Lexbe eDiscovery Platform will be available at least 99.95% of the time in a billing month, based on 24-hour days for the number of days in the subject month from the Internet in the United States (‘Account Availability’). If the Primary Licensee’s access to Lexbe Online is less than 99.95%, then the Primary Licensee will be entitled to a pro rata credit for Account License Charges during the period of unavailability. Credit under this section shall not be available in connection with any failure or deficiency of Account Availability caused by or associated with: circumstances beyond Lexbe’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or service, unless such failure is substantially caused by Lexbe; scheduled maintenance and emergency maintenance and upgrades; DNS failure outside the direct control of Lexbe; Primary Licensee’s or Authorized Users’ acts or omissions (or acts or omissions of others engaged or authorized by Primary Licensee or Authorized Users), including, without limitation, any negligence, willful misconduct, or use of Lexbe eDiscovery Platform in breach of this Agreement; outages elsewhere on the Internet that hinder access to the Account. To receive a credit, the Primary Licensee must make a request by sending an e-mail message to support@Lexbe.com. Each request in connection with this Service Level Agreement should include dates and approximate times of the unavailability of Primary Licensee’s Account and must be received by Lexbe within ninety (90) business days after the Primary Licensee’s account was not available. Credits under this section are the sole and exclusive remedy of the Primary Licensee, any User and any party to this Agreement with respect to any failure or deficiency in the Lexbe Content availability as part of Lexbe eDiscovery Platform. 6. Privacy, Disclosure Lexbe’s privacy policies may be viewed at http://www.ediscovery.lexbe.com/privacypolicy/ Lexbe reserves the right to modify its privacy policies from time to time. Lexbe occasionally may need to notify all Authorized Users of Lexbe eDiscovery Platform (whether or not they have opted out as described above) of important announcements regarding the operation of Lexbe eDiscovery Platform, and any related contact is authorized. 7. Responsibilities of the Primary Licensee and Users The Primary Licensee and Authorized Users are responsible for all activity occurring in the Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with their use of Lexbe eDiscovery Platform, including those related to data privacy, international communications and the transmission of technical or personal data. Primary Licensee and Authorized Users shall: (i) keep their user login password confidential, not share their password with any other person, maintain effective password security, use complex passwords that cannot be easily guessed, and change their passwords periodically, as needed to maintain the confidentiality of their Customer Data and the security of their access to Lexbe eDiscovery Platform, (ii) notify Lexbe immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) report to Lexbe immediately and use reasonable efforts to stop immediately any improper use of Lexbe eDiscovery Platform that is known or suspected by the Primary Licensee or Authorized Users; and (iv) not impersonate another Lexbe user or provide false identity information to gain access to or use Lexbe eDiscovery Platform. Primary Licensee and Users shall not take any action in connection with Lexbe eDiscovery Platform or Lexbe that is prohibited by this Agreement. Primary Licensee and Users should also maintain original or periodic backup copies of all Customer Data as needed. Any Primary Licensee or Authorized User that is not a lawyer represents that such Primary Licensee or Authorized User has engaged legal counsel and looks to that counsel regarding legal advice, and not to Lexbe. 8. Intellectual Property Ownership Lexbe (and its licensors, where applicable) owns and shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Lexbe Technology, the Lexbe Content, Lexbe eDiscovery Platform and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Primary Licensee or Authorized Users or any other party relating to Lexbe eDiscovery Platform. This Agreement is not a sale and does not convey to the Primary Licensee or Authorized Users any rights of ownership in or related to Lexbe eDiscovery Platform, the Lexbe Technology or the Intellectual Property Rights. The Lexbe name, the Lexbe logo, and the product names associated with Lexbe eDiscovery Platform are trademarks of Lexbe, and no right or license is granted to use them. Lexbe may protect its rights in the Lexbe Technology through a Technology Injunction Action and any required bond will be set at ten thousand dollars. 9. Charges and Payment of Fees The Primary Licensee shall pay the Account License Charges, as well as any other authorized fees or charges to the Account in accordance with Lexbe’s fees, charges, and billing terms in effect at the time a fee or charge is incurred. Payments are due on billing, unless otherwise agreed. Once incurred, payment obligations are non-cancelable and all amounts paid are nonrefundable. The Primary Licensee is responsible for paying for all Lexbe Online usage ordered for the entire License Term, whether or not Lexbe eDiscovery Platform is actively used. A Primary Licensee may be required to prepay, provide Lexbe with a valid credit card or present an approved purchase order, as a condition to signing up for, and continuing to use, the Services. An Account Administrator may modify the number of Authorized Users and add and delete documents and other files and data, and any Authorized User can add documents and other files and data, and such actions may affect the charges on the Account. Lexbe reserves the right to modify its fees and charges at any time, upon at least 10 days prior notice, by any of the following methods: notification to the Primary Licensee on a bill, invoice, receipt or by email, notification to an Account Administrator by email, or posting the changes on the Lexbe eDiscovery Platform website on a page used by Account Administrators to administer the Account. Lexbe may provide a Promotional Account to new clients and others and this Agreement will be applicable to the Primary Licensee and Authorized Users part of the Promotional Account, except for subscription charges. Promotional Accounts may be of limited terms and with limited functionality as determined by Lexbe from time to time. Lexbe may offer an Account Hibernation service from time to time on terms as Lexbe determines. 10. Billing and Renewal This Agreement commences on the Effective Date. The Initial License Term for an Account License will be determined on the date the Primary Licensee or an Account Administrator agrees to pay for Lexbe eDiscovery Platform. Unless otherwise specifically agreed in writing by Lexbe and the Primary Licensee, (i) upon the expiration of the Initial License Term, the License Term will automatically renew for successive renewal terms equal in duration to one month at Lexbe’s then current fees applicable to the Account, (ii) Account License Charges will based on the number of Authorized Users and storage used, based Lexbe’s then current fees, (iii).Account License Charges will be paid in advance for use of Lexbe eDiscovery Platform through an applicable License Term, and (iv) Lexbe will bill the credit card on file for the Account or issue an invoice to the Primary Licensee every month. Fees for Other Services will be charged on an as-quoted basis. Lexbe’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the Primary Licensee and Authorized Users shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Lexbe’s income. The Primary Licensee agrees to provide Lexbe with complete and accurate billing and contact information. This information includes legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Account Administrator. If the Primary Licensee believes a bill or receipt is incorrect, the Primary Licensee must contact Lexbe in writing within 60 days of the invoice or billing date of the invoice or bill containing the amount in question to be eligible to receive an adjustment or credit. 11. Non-Payment and Suspension In addition to any other rights granted to Lexbe by this Agreement, Lexbe reserves the right to suspend Services if an Account becomes delinquent. Delinquent charges after 30 days are subject to interest of one and one-half percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all lawful expenses of collection. The Primary Licensee will continue to be charged for an Account License during any period of suspension. If the Primary Licensee or Lexbe terminates this Agreement, the Primary Licensee will remain obligated to pay the balance due on the Account computed in accordance with Section 9 above. Lexbe may charge such unpaid fees to any credit card provide on the Account or otherwise bill the Primary Licensee for such unpaid fees. Lexbe may require a deposit against future Services, or prepayment of Services, and may rightfully refuse to render continued Services if unpaid. 12. Termination by Primary Licensee/Account Administrator The Primary Licensee or an Account Administrator may terminate the Account by notifying Lexbe in writing at least five (5) business days prior to the date of the invoice for the following term. No refund or rebate of unused time or charges will be due or payable. In the case of a Promotional Account, email notification of Account set-up including the remaining number of days in the Promotional Account shall constitute notice of termination. Lexbe has no obligation to retain the Customer Data, and may delete Customer Data from Lexbe eDiscovery Platform upon termination or expiration of an Account License. Prior to termination, expiration or reduction of an Account License, the Primary Licensee and Authorized Users should download and save any Customer Data that the Primary Licensee or Authorized Users wish to retain. 13. Termination by Lexbe Lexbe may terminate a User’s access to the Account or use of Lexbe eDiscovery Platform, if a User fails to comply with this Agreement. Lexbe may terminate an existing Account License upon material breach of this Agreement by the Primary Licensor or any Authorized User. Any breach of the Primary Licensee’s payment obligations (after 30 days) or unauthorized use of the Lexbe Technology or Services (at any time) by an Authorized User will be deemed a material breach of this Agreement. In addition, Lexbe may terminate a Promotional Account at any time for any reason. The Primary Licensee and Users agree and acknowledge that Lexbe has no obligation to retain the Customer Data upon termination of Account License, and may delete Customer Data from Lexbe eDiscovery Platform, within ten (10) days following termination. Prior to termination of an Account License the Primary Licensee and Authorized Users should download and save any Customer Data that the Primary Licensee and Authorized Users wish to retain. 14. Representations and Warranties Each party represents and warrants that such party has the legal power and authority to enter into this Agreement. Lexbe represents and warrants that it will use commercially reasonable efforts to provide access to Lexbe eDiscovery Platform by the Authorized Users. The Primary Licensee and Users represent and warrant that: (a) such Primary Licensee and User have not falsely identified itself nor provided any false information to gain access to Lexbe eDiscovery Platform, (b) the Account will be used only for the Permitted Use, (c) the Primary Licensee and Users have authority to access and use the Customer Data and to use the Services in connection with the Customer Data, (d) the Primary Licensee and each User understands that Lexbe eDiscovery Platform is a supplemental tool for experienced litigation professionals and it is not meant for use by persons who do not fully understand or cannot manage the litigation process unaided, (e) the Primary Licensee and each User agree that they are responsible for legal compliance regarding the Cases and Customer Data and not Lexbe, and (f) that the Primary Licensee and Users are relying on their own skills and competence or other third party sources of expertise and advice and are not relying on Lexbe or Lexbe Related Persons for any legal or technical advice. 15. eDiscovery and Other Services If the Primary Licensee or an Account Administrator orders any eDiscovery Services from Lexbe, they will be subject to Lexbe’s eDiscovery Services Agreement, available at www.Lexbe.com/hp/a/ediscovery-services-agreement.htm. If Lexbe is requested by the Primary Licensee or an Account Administrator to engage in Other Services, or Lexbe is required to engage in Other Services by others in connection with or involving the Primary Licensee or Authorized Users, and Lexbe agrees to perform the Other Services, then Lexbe will charge the Primary Licensee and the Primary Licensee will pay Lexbe for the Other Services as performed by Lexbe personnel at Lexbe’s then current hourly rates for the required personnel, plus any associated out-of-pocket expenses. 16. Indemnification The Primary Licensee and Users shall indemnify and hold Lexbe and the Lexbe Related Persons harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data is improper; (ii) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (iii) a claim, which if true, would constitute a violation by the Primary Licensee or Users of the Primary Licensee or Users’ representations and warranties; or (iv) a claim arising from the breach by the Primary Licensee or Users or the Primary Licensee or Users’ agents of this Agreement; provided in any such case that (a) Lexbe gives written notice of the claim to the Primary Licensee; (b) Lexbe gives the Primary Licensee sole control of the defense and settlement of the claim, provided that the Primary Licensee may not settle any claim unless the Primary Licensee obtains unconditionally releases of Lexbe and Lexbe Related Persons of all liability and such settlement does not adversely affect Lexbe’s business or Service; (c) Lexbe provides to the Primary Licensee all available information and reasonable assistance; and (d) Lexbe has not compromised or settled such claim. Lexbe shall indemnify and hold the Primary Licensee harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that Lexbe eDiscovery Platform directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; or (ii) a claim, which if true, would constitute a violation by Lexbe of its representations or warranties contained in Section 14 of this Agreement; provided in any such case that the Primary Licensee (a) gives written notice of the claim to Lexbe; (b) gives Lexbe sole control of the defense and settlement of the claim (provided that Lexbe may not settle or defend any claim unless it unconditionally releases the Primary Licensee of all liability); (c) provides to Lexbe all available information and reasonable assistance; and (d) has not compromised or settled such claim. Lexbe shall have no indemnification obligation, and the Primary Licensee and Users shall indemnify Lexbe and the Lexbe Related Persons pursuant to this Agreement, for claims arising from any infringement arising from the combination of Lexbe eDiscovery Platform with any of the Primary Licensee and Users’ products, service, hardware or business processes. The liability of parties under this section may be limited in amount or otherwise by other sections of this Agreement, including Sections 17-22, 28-29. 17. Limitations in Services The Primary Licensee and Users understand, agree and accept that the Services are inherently imperfect, and subject to error, and that Lexbe has not guaranteed any particular standard or level of Services other than the Account Availability. For example and without limitation, the document viewer in Lexbe eDiscovery Platform is designed to produce an approximation of many documents but is imperfect and will fail to display, or inaccurately display many documents, the search index can and does fail to return results for a variety of reasons, including failure to support a particular file type, failure of OCR, failure to read and index text in any particular file, and errors of an index to operate accurately for many other reasons, some beyond and some within Lexbe’s control. The Primary Licensee and Authorized Users accept that the only way to review Customer Data with complete accuracy is to review the Customer Data in applicable Native File Format applications apart from Lexbe eDiscovery Platform and anything less is an approximation and done for convenience, speed and cost. The Primary Licensee and Authorized Users can and should maintain their own archival copies of the Customer Data. Customer Data can be periodically downloaded by the Primary Licensee or Authorized Users from Lexbe eDiscovery Platform as needed to maintain archival or backup copies. Also, the Lexbe Technology contains bugs, defects and errors (like substantially all computer software of any complexity) and these errors can lead to errors in the Services. 18. DISCLAIMER OF WARRANTIES EXCEPT AS SPECIFIED IN SECTION 14, LEXBE AND LEXBE RELATED PERSONS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY OF ANY KIND, WHETHER IN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, EVEN IF LEXBE OR LEXBE AFFILIATED PERSONS WERE INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, LEXBE AND LEXBE RELATED PERSONS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) THE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS, NEEDS OR EXPECTATIONS (EVEN IF KNOWN TO LEXBE), (C) SERVICES WILL BE WITHOUT ERROR, ACCURATELY REPRODUCED OR RELIABLE, (D) THE SERVICES ARE BUG-FREE, ERROR-FREE, OR DEFECT-FREE OR THAT BUGS, ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICES AND ALL LEXBE CONTENT IS PROVIDED TO THE PRIMARY LICENSEE AND USERS STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND NON-INTERFERENCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LEXBE AND LEXBE AFFILIATED PERSONS. 19. DELAYS OR FAILURES THE OBLIGATIONS OF ANY PARTY TO THIS AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS PARTICULAR OR COMMON IN THE USE OF COMPUTER, THE INTERNET AND ELECTRONIC COMMUNICATIONS. NO PARTY IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 20. LIMITATIONS OF LIABILITY IN NO EVENT SHALL A PARTY OR AFFILIATES BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER RELATED DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIS AGREEMENT, EVEN IF THE PERSON FROM WHICH OR WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER AN ACTION IS SOUGHT IN CONTRACT, NEGLIGENCE, OTHER TORT OR OTHERWISE. LEXBE UTILIZES THIRD PARTY SOFTWARE LIBRARIES AS PART OF THE SERVICES AND THE LEXBE TECHNOLOGY AND WILL HAVE NO LIABILITY IN CONNECTION WITH ANY FAILURE OF SERVICES IN CONNECTION WITH THOSE LIBRARIES FOR ANY REASON, INCLUDING LEXBE’S SELECTION OF THE SOFTWARE LIBRARIES. IN NO EVENT SHALL LEXBE’S AGGREGATE LIABILITY IN CONNECTION WITH ANY PARTICULAR DISPUTE EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE PRIMARY LICENSEE IN CONNECTION WITH THE ACCOUNT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN LEXBE AND THE OTHER PARTIES. LEXBE’S PRICING HEREIN REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 21. NO LIABILITY OF RELATED PERSONS IN NO EVENT WILL ANY LEXBE RELATED PERSON HAVE ANY LIABILITY OF ANY KIND, IN RELATION TO ANY MATTER INVOLVING LEXBE OR RELATED TO THIS AGREEMENT OR THE SERVICES, AND THE PRIMARY LICENSE AND USERS AGREE TO LOOK SOLELY TO LEXBE FOR SATISFACTION OF ANY SUCH CLAIM, AND TO NOT MAKE ANY SUCH CLAIM OR BRING ANY SUCH ACTION AGAINST LEXBE RELATED PERSONS. ANY SUCH CLAIMS ARE HEREBY WAIVED. IF SUCH A CLAIM IS MADE IT WILL BE DISMISSED BY THE APPLICABLE TRIBUNAL. 22. Reduced Statute of Limitations Any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. 23. Local Laws and Export Control Lexbe eDiscovery Platform may be subject to United States export controls. Lexbe eDiscovery Platform may not be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using Lexbe eDiscovery Platform, each User represents and warrants that such User is not located in, under the control of, or a national or resident of any such country or on any such list. 24. Notice Lexbe may give notice by means of any of the following: a notice on an invoice or receipt sent to the Primary Licensee, a notice by electronic mail to the contact person of the Primary Licensee on the books of Lexbe, a notice to Account Administrators made on an Account Administrator accessible page on Lexbe eDiscovery Platform, a general notice on Lexbe eDiscovery Platform made available to Authorized Users, a notice on login to Lexbe eDiscovery Platform, or email messages to Authorized Users. Lexbe may also give notice by written communication sent by first class mail or pre-paid post to the Primary Licensee or Authorized Users’ address on record in Lexbe’s account information. In each case, such notice will be deemed delivered when made available or sent and will bind the Primary Licensee and Users. The Primary Licensee and Users may give notice to Lexbe at any time by any of the following: Written communication by facsimile to Lexbe at the following fax number: (888) 836-2427; written communication delivered by nationally recognized overnight delivery service or first class postage prepaid mail, certified with return receipt requested, to the following address: Lexbe LC 3801 N. Capital of TX Hwy E240/306, Austin, TX 78746, addressed to the attention of: Principal; email sent to notice@lexbe.com. 25. Modifications to Agreement Lexbe reserves the right to modify amend the terms and conditions of this Agreement at any time, effective upon posting of an updated version of this Agreement on Lexbe eDiscovery Platform, or by providing notice as provided in the prior Section. When revised, the “effective date” at the top of this Agreement will also be modified. Subsequent renewal of a License Term, or continued use of Lexbe eDiscovery Platform after any such modifications (except as provided in the next sentence), shall constitute the Primary Licensee and Users’ consent to such changes. If the Primary Licensee or an Authorized User objects to the modifications, then the objecting Primary Licensee or Authorized User will promptly notify Lexbe of the objections and then the existing version of the Agreement prior to the objected-to modifications will remain in effect for the objecting Primary Licensee or Authorized User. Upon such objection, the objecting Primary Licensee or Authorized User may continue using the Services as before the modification, but this Agreement will terminate with respect to the objecting Primary Licensee or Authorized User at the end of the then-current License Term, unless the end of the then-current License Term is ten days or less following the objection, in which case this Agreement will terminate at the end of the succeeding License Term, but not more than 45 days following the objection. Lexbe and any particular Primary Licensee or Authorized User may enter into a written modification to this Agreement to govern the relationship between Lexbe and such particular Primary Licensee (and applicable Account) or Authorized User and such agreement will control over this Agreement. To be effective, such modification between Lexbe and the particular Primary Licensee Authorized User must be written, specifically refer to this Agreement as a modification or amendment and be signed by a principal of Lexbe. 26. Assignment No party may assign this Agreement without written consent of the other parties, except such consent is not required to the successor of all or substantially all of the assignor’s business or assets. 27. Disputes Resolution If a dispute arises out of or relates to this Agreement, or the breach thereof, or relating to the use of the Services, or to any acts or omissions for which the Primary Licensee or Users may contend Lexbe or Lexbe Related Persons are or may be liable, including but not limited to any claim or controversy as to arbitrability (collectively, the “Dispute”), but excluding a Technology Injunction Action or an Interpleader Action, and if the Dispute cannot be amicably settled, then THE DISPUTE SHALL BE FINALLY, AND EXCLUSIVELY, SETTLED BY ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). The arbitration shall be held before one arbitrator under the commercial arbitration rules of the AAA in force at that time, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration shall be conducted in Austin, TX. The arbitrator will conduct the arbitration in an expeditious manner, and will set and enforce limits as to the extent of discovery, number of witnesses, length of testimony, consideration of motions, and other matters, proportional to the size and extent of claims, and to meet the goals of commercial arbitration to adjudicate disputes in a fast, efficient and cost-effective manner. To begin the arbitration process, a party must make a written demand of arbitration. Should a Dispute arise and should the arbitration provisions above become inapplicable or unenforceable, or in any instance of any lawsuit between the Primary Licensee, Users, Lexbe and/or or Lexbe Related Persons, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Austin, TX, and the matter will be heard by a judge without jury, and THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL. If a party employs attorneys to enforce any right in connection with any Dispute, the prevailing party shall be entitled to recover reasonable attorneys’ fees. The prevailing party will be determined to be the party who has most successfully proven the party’s claims in the matter, not merely the party who has received a positive reward. 28. Agreement Interpretation This Agreement will not be construed in favor of one party or another, no matter who drafted any provision. This Agreement comprises the entire agreement between the Primary Licensee, Users and Lexbe regarding the subject matter contained herein, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties. This Agreement supersedes and controls over Lexbe’s general terms of use agreement, www.Lexbe.com/hp/termsofuse.htm. The failure by any party to enforce any right or provision in this Agreement shall not constitute or operate as a waiver of such right or provision by such party unless specifically acknowledged and agreed to by such party in writing. Whenever possible, each provision of this Agreement shall be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or is invalid under applicable law, it shall be ineffective only to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 29. General This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. No joint venture, partnership, employment, or agency relationship exists between the Primary Licensee, Users and Lexbe as a result of this Agreement or use of the Services. The failure by any party to enforce any right or provision in this Agreement shall not constitute or operate as a waiver of such right or provision by such party unless specifically acknowledged and agreed to by such party in writing. The provisions of Sections 15-23, 26-29 will survive termination of this Agreement for any reason. If there is a dispute regarding ownership of the Customer Data, the Primary Licensee and Users authorize Lexbe to bring an Interpleader Action and to have its legal and other expenses in connection with Interpleader Action reimbursed. The standard of conduct and care in connection with the Services will be a commercially reasonable care standard (subject to limits in this Agreement), and not a best efforts standard. ANY DISCLAIMER OF WARRANTY OR LIMITATION OF LIABILITY OR DAMAGES IN THIS AGREEMENT WILL APPLY EVEN IF THE INDIVIDUAL OR ENTITY DISCLAIMING A WARRANTY OR LIMITING LIABILITY OR DAMAGES WAS NEGLIGENT, GROSSLY NEGLIGENT OR RECKLESS. If a party is entitled under this Agreement to make a decision or determination, or take or refuse an action, then that decision, determination or action may be made in such party’s sole discretion, unless this Agreement provides expressly and specifically to the contrary. If the obligations of this Agreement apply to more than one individual or entity, then the obligations are joint and several for each obligated individual or entity. Except for benefits to the Lexbe Related Persons, this Agreement shall not confer any rights or remedies upon any third-party other than the parties to this Agreement and their respective successors and permitted assigns. Whenever possible, each provision of this Agreement shall be interpreted in such a way as to be effective and valid under applicable law. |