Revision Date: August 1, 2023
BY LOGGING ON AND USING THE LEXBE EDISCOVERY PLATFORM (“LEP”) OR OTHER LEXBE SERVICES, OR BY EXECUTING OR CONSENTING TO AN INCORPORATING AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. LEP IS PROTECTED BY COPYRIGHT AND OTHER LAW. ANY IMPROPER ACCESS OR RELATED ACTIVITY IS STRICTLY PROHIBITED. DEFINED TERMS ARE INCLUDED AT THE END OF THIS AGREEMENT. THIS AGREEMENT INCLUDES LIMITATIONS ON LIABILITY AND REQUIRES ARBITRATION OF DISPUTES.
1. Authorization, Lexbe eDiscovery Platform License & Grant Restrictions. (a) Customer (through its Authorized Agent, if applicable) hereby authorizes Lexbe to establish, continue and maintain an Account or Accounts to provide Lexbe Services to Customer and Authorized Users. Lexbe hereby grants to the Customer and Authorized Users a non-exclusive, non-transferable, worldwide right to use LEP, solely for the Permitted Use, in connection with the Customer’s Account, subject to the terms and conditions of this Agreement including Customer’s timely payment of invoices or other Customer obligations (“Account License”). Except for the Permitted Use by Authorized Users, no other use of LEP or other Lexbe Services is permitted. All rights not expressly granted to an Authorized User are reserved by Lexbe.
(b) Customer and Authorized Users may use LEP only for a Permitted Use and the Customer and Users shall not: (i) interfere with or disrupt the integrity or performance of LEP or the data contained therein; (ii) attempt to gain unauthorized access to LEP or its related systems or networks; (iii) use LEP in violation of this Agreement, any Lexbe policy or applicable law.
(c) Customer and Users shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party LEP or Lexbe Content in any way; (ii) modify or make derivative works based upon LEP or Lexbe Content; or (iii) reverse engineer or access LEP or Lexbe Technology in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of LEP, or copy any ideas, features, functions or graphics as LEP.
(d) The terms of this Agreement constitute an offer by Lexbe to the Customer and Authorized Users to utilize LEP exclusively upon the terms and conditions set forth in this Agreement. No contrary or additional terms or conditions proposed by the Customer 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 an executive officer of Lexbe making specific and express reference to this Agreement or the Incorporating Agreement, and the contrary or additional terms proposed by the Customer or Authorized Users. The use of LEP or other Lexbe Services by the Customer or Authorized Users, or the payment by the Customer for Lexbe Services, shall be deemed unqualified acceptance of the terms and conditions included in this Agreement.
(e) A stable fast broadband internet connection and the latest release modern browser (Chrome, Edge, or Firefox) are required to use LEP properly. LEP may work in a limited manner otherwise, but the user experience or functionality may suffer.
(f) Lexbe reserves the right to modify any of the Lexbe Services at any time, including features, functionality or other aspects of LEP.
(g) This Agreement, including the Incorporating Agreement, are valid only when accepted by Lexbe in Austin, TX. An Incorporating Agreement becomes binding only when accepted and signed by Lexbe.
(h) Only Authorized Users may access or use LEP or any other Lexbe Services, and use by Unauthorized Users is strictly prohibited.
(i) The LEP License Term for the Customer will commence on the earlier of: (i) as provided in an Incorporation Agreement with the Customer, or (ii) the first date that a User in the Customer Account logs into LEP. LEP License Term for the Customer will end on LEP Account termination as provided in Sections 13-15 of this Agreement.
2. Customer Data. Lexbe does not own or make an ownership claim to any of the Customer Data. The Customer and/or the Authorized Users, and not Lexbe, are solely responsible for the accuracy, quality, integrity, legality, reliability, usage, intellectual property rights, transfer, and right to use the Customer Data.
3. Customer Data Confidentiality. Lexbe agrees and understands that the Customer Data is intended to be confidential, and will take reasonable steps to assure that the Customer Data stored on LEP is 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 a valid order from a court or other tribunal of competent jurisdiction, Lexbe agrees not to disclose the Customer Data to any person or entity other than to the Customer, Users, or as the Customer or Authorized Users authorize or instruct. If access to Customer Data is sought by a third party, Lexbe will promptly notify the Customer and/or an Account Administrator of such action, and subject to other provisions in this Agreement, tender to the Customer Lexbe’s defense responding to the request, and cooperate with the Customer concerning Lexbe’s response.
4. Service Level Agreement. Lexbe guarantees to Customer that Customer’s access to Customer’s LEP Account will have Service Level Availability of at least 99.99%. If Customer’s access to Customer’s LEP Account is less than 99.9%, then Customer 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, the Customer must make a request by sending an email message to [email protected]. Each request in connection with this Service Level Agreement should include dates and approximate times of the unavailability of the Customer’s LEP Account and must be received by Lexbe within ninety (90) days after Customer’s LEP Account was not available. Credits under this section are the sole and exclusive remedy of the Customer with respect to any failure or deficiency in connection with Service Level Availability.
5. Privacy, Disclosure. Lexbe’s general privacy policies may be viewed at: https://www.lexbe.com/privacy-policy/. Lexbe reserves the right to modify its privacy policies at any time. Lexbe occasionally may need to notify all Authorized Users of LEP (whether or not they have opted out as described above) of important announcements regarding the operation of LEP, and this or any related contact is authorized.
6. Intellectual Property. (a) Lexbe, and its licensors, where applicable, own and shall own all right, title, and interest, including all related Intellectual Property Rights, in and to Lexbe Technology, Lexbe Content, Lexbe Services, Collected Statistics, and any Customer Feedback.
(b) This Agreement is not a sale and it does not convey to Customer or Customer’s Authorized Users any rights of ownership or Intellectual Property Rights in or related to Lexbe Services, Lexbe Technology or Lexbe Content. Lexbe name, Lexbe logo, and the product names associated with Lexbe Services are trademarks of Lexbe, and no right or license is granted to use them.
(c) Lexbe may use and reproduce Customer Feedback for the purpose of creating Marketing Materials, in which Lexbe will include appropriate attributions and acknowledgments to the Customer and/or individual offering the Customer Feedback if the Customer or Authorized Users are specifically identified. The Customer or Authorized Users may revoke this permission at any time by providing specific written notice to Lexbe, and upon receipt of such notice, Lexbe will cease using the applicable Customer Feedback in new Lexbe Marketing Materials and shall remove the Customer Feedback from existing online Marketing Materials within ten days and for printed materials on the next update.
(d) Customer grants to Lexbe a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data (within the Lexbe Services) and the Collected Statistics and perform all acts as may be necessary, helpful, or useful for Lexbe, its staff, and authorized third parties to provide the Lexbe Services, including maintenance of the Lexbe Services and the Customer’s Account, improving functions with Customer’s account, and supporting the integrity of Lexbe Services and related data processing systems. Any use of Collected Statistics by Lexbe outside of for Customer’s Lexbe Account(s) will be anonymized to not display any specific individual PII.
7. Responsibilities of the Customer and Users. The Customer and Users are solely responsible for all usage of LEP and other Lexbe Services, including the following specific responsibilities:
(a) To use complex passwords that cannot be easily guessed, and change passwords regularly, to keep their user login password confidential, and to not share their LEP password with any other person, all as needed to maintain effective password security and to maintain the confidentiality of their Customer Data and the security of their access to LEP and other Lexbe Services.
(b) To notify Lexbe immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
(c) To report to Lexbe immediately and use reasonable efforts to stop immediately any improper use of LEP or other Lexbe Services that is known or reasonably suspected by the Customer or Authorized Users, including any access by Unauthorized Users.
(d) To not impersonate another Lexbe User or provide false identity information to gain access to or use LEP.
(e) To not take any action in connection with LEP or other Lexbe Services that is prohibited by this Agreement.
(f) To maintain original or periodic backup copies of all Customer Data as needed, as LEP is not intended as a permanent or sole store of any important Customer Data. Backups of selected Case Customer Data in an Account may be downloaded periodically by Account Administrators within LEP by utilizing Briefcase or Production functionality for documents, and Excel spreadsheet download functionality for metadata or coding created by Authorized Users. Complete Case Archives may be created on request to Lexbe Professional Services (additional charges apply) as described elsewhere in this Agreement.
(g) For any Customer or Authorized User who is not a licensed attorney, to only use LEP and other Lexbe Services under the direction of a licensed attorney.
(h) For any User, to use LEP and other Lexbe Services only if at least 18 years of age, and otherwise legal in the jurisdiction of the User’s residence and use.
(i) To follow and comply with all applicable local, state, national, and foreign laws, treaties, and regulations in connection with their use of LEP and other Lexbe Services, including those related to PII, data privacy, international communications, and the transmission of technical or personal data.
8. Account Types. Lexbe offers various accounts to utilize Lexbe Services, including the following LEP Account types:
(a) LEP Flex Accounts. LEP Flex Accounts are month-to-month commitments without extended-term commitments, and are billable based on the amount of LEP Account Storage, as well as any other usage of Lexbe Services in the Accounts. Lexbe will bill the Customer following the end of each calendar month for LEP Account during the previous month (e.g., June usage is billed in arrears in July), at the contractual rate specified in the Incorporating Agreement, or the Default LEP Account Rate, if unspecified or otherwise applicable, for the highest LEP Account Storage used in the month.
(b) LEP Subscription Accounts. LEP Subscription Accounts are fixed time commitments (e.g. usually multiyear) and are not cancellable. LEP Subscription Accounts are billable based on the maximum authorized LEP Account Storage in the Account, and if exceeded in a billable month, the Overage Customer Data in the Account in addition to the maximum authorized LEP Account in an Account. Overage in LEP Subscription Accounts is additionally billed at the Default LEP Account Rate per month for all Overage Customer Data, unless another rate is specified in the applicable Incorporating Agreement. LEP Subscription Accounts may be upgraded to a larger capacity plan with prorated credit for the previous LEP Subscription Account commitment, so long as (i) the existing or revised LEP Subscription Account commitment is at least six months from the time of upgrade, and (ii) the Customer request to upgrade is made and completed within thirty days following the invoice date for the month in which the upgrade is requested. LEP Subscription Accounts may either be prepaid or billable in monthly installments, as provided in the applicable Incorporating Agreement. LEP Subscription Accounts are eligible for Lexbe’s Free ESI Upload Service for standard uploads, so long as the Customer’s Account is not at least sixty days in arrears. If Lexbe’s Free ESI Upload Service is not applicable to an LEP Subscription Account for any reason, and Lexbe staff conducts the upload, then their time will be billable at applicable contracted or current hourly rates.
(c) LEP Hibernation Accounts. LEP Hibernation Accounts are available for Customer Data previously hosted in LEP Flex Accounts or LEP Subscription Accounts. LEP Hibernation Accounts are not accessible by the Customer or Authorized Users while hibernated and are suitable for Cases in which processed and coded Customer Data will not require access by Customer or Authorized Users for an extended period of several months or more, but may require active access and use in the future. Subject to other contractual restrictions, Customer Data can be transferred between LEP Flex Accounts, LEP Subscription Accounts, and LEP Hibernation Accounts, upon request to a Lexbe Professional Services staff member and will be billable by Professional Services staff members under contracted or current hourly rates.
(d) There are no set-up or ongoing Case or User fees in LEP Accounts with normal use.
(e) For LEP Accounts that are not prepaid and are over 60 days past due, at Lexbe’s option the billable rate per GB of LEP Account Storage will revert to the Default LEP Account Rate until the LEP Account is brought current.
Lexbe also offers the following Non-LEP Account Types, which do not provide Customer or User access to LEP: (y) LES-Only Accounts, and (z) Early Case Storage Accounts. Early Case Storage Accounts are available for the Customer to store Customer Data not previously processed and stored in LEP, including pre-processed native files, or productions from other eDiscovery Platforms that have not been previously loaded to LEP. Early Case Storage Accounts are not hosted in LEP, and are instead held in an Amazon Web Services cloud-based unstructured storage folder or directory maintained by Lexbe on Customer’s behalf and accessible by Lexbe staff and Customer-Associated Persons as designated by Customer. Customer Data in an Early Case Storage Account should be stored in folders designated by Case Name > Custodian Name, when possible. Early Case Storage Accounts are charged on a monthly or annual per GB basis, and transfers to or from an Early Case Storage Account by Lexbe staff are billed at contracted or current hourly rates.
LEP Accounts and Non-LEP Accounts can also incur usage of other Lexbe Services and these will also be billed monthly or regularly to the Account and are the payment responsibility of the Customer.
9. LEP Account Storage Calculations. LEP Accounts are billed including a calculation of processed Customer Data uploaded and other ESI created or stored an LEP Account, or in the case of LEP Subscription Accounts, contracted storage capacity whether or not used. Lexbe calculates the billable storage for the month for an eDiscovery Platform Account as the peak storage used, in GBs, rounded up to the next GB (“LEP Account Storage”). LEP Account Storage size generally increases beyond the amount of the Customer Data uploaded because of ZIP, RAR, PST, or other archive file decompression, PDF, TIFF image, placeholder file creation, text extraction, OCR, index creation, and update, SQL database creation, and update, Production, Briefcase, and Archive creation, and other miscellaneous processes. If Customer Data is removed from an LEP Account, or an LEP Case or LEP Account is deleted, the effect will not be reflected in the current monthly billing, which is based on the highest account usage in the month. Instead, reductions in the LEP Account Storage will be reflected in the succeeding month. Cancellation or deletion of an LEP Flex Account or LEP Case will not be reflected for the month of deletion or cancellation, which instead are billed reflecting the highest usage in the applicable month.
10. Billing for Lexbe Services other than LEP. If the Customer or an Authorized User requests or otherwise engages staff for any Lexbe Services, Customer will pay for these Lexbe Services based on Lexbe’s contracted or current rates, at per GB and/or hourly rates, as applicable. Account type designations as reflected on Lexbe’s books and/or Incorporating Documents are for convenience in this regard and any Lexbe Services may be ordered in any account type, subject to Lexbe’s acceptance of the Order or request. Except as specifically provided as courtesy or free in the Customer Support Policy, or as otherwise provided or limited in this Agreement, all Services other than LEP are billable to Customer at current or contracted billing rates.
11. Billing Fees, Cycle & Information. The Customer agrees to provide Lexbe with and maintain complete, accurate, and valid billing and contact information. This information includes the Customer’s legal name and street address, the name, email address, and phone number of all Customer Account Administrators, and the name, email address, and telephone number of an authorized billing payables contact. Fees for Services are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the Customer shall be responsible for payment of all such taxes, levies, or duties. For LEP Accounts that are not prepaid, the Customer authorizes and agrees to pay current monthly billings by credit card and to maintain a valid credit card on file with Lexbe for payment, including all required information to allow prompt billing, unless otherwise agreed in writing by Lexbe. Unless otherwise agreed in writing, all payments for Lexbe Services are due immediately on billing. Once incurred, payment obligations for Lexbe Services are non-cancellable and all amounts paid are nonrefundable, including unused term or capacity of LEP Subscription Accounts. With respect to any particular job, Order, or services part of Services, Lexbe may require that Customer present an approved purchase order, provide a Customer Deposit, prepay for Lexbe Services, or pay with a valid credit card, as a condition to Lexbe’s offering, providing, or completing any Services, or releasing any Customer Data to Customer or Authorized Users. If the Customer has or is required to provide a credit card for billing, the Customer agrees to maintain valid and updated information to Lexbe. If the Customer believes an invoice, statement, receipt, or other Customer billing information is incorrect, the Customer must contact Lexbe in writing within 60 days of the date of the invoice, statement, receipt, or other Customer billing information in order to be eligible to receive an adjustment or credit.
12. Non-Payment and Suspension. In addition to any other rights granted to Lexbe by this Agreement, Lexbe reserves the right to suspend access to any Lexbe Services if an Account becomes delinquent in payment, or the Customer or any Customer User violates this Agreement or an Incorporation Agreement, as applicable. Delinquent charges after 30 days are subject to interest of one percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all lawful expenses of collection. The Customer will continue to be charged for LEP Account usage during any period of suspension, including if Customer and User access to Customer Data has been limited, suspended or terminated. If the Customer or Lexbe terminates this Agreement, the Customer will remain obligated to pay the balance due on the applicable Account computed in accordance with this Agreement, or if applicable, in an Incorporating Agreement. Lexbe may charge such unpaid fees to any credit card provided on the Account or otherwise bill the Customer for such unpaid fees. With respect to future Services ordered or requested by Customer at any time, Lexbe may require a Customer Deposit, or prepayment, or may rightfully refuse to render continued Services.
13. Termination of Accounts by Customer.
(a) All LEP Accounts and this Agreement will remain in effect until terminated as provided in this Section or the next.
(b) All LEP Accounts may be canceled by Customer in writing by email to [email protected], sent by a Customer Authorized Agent, meeting all the requirements of this section including advance notice for specific account types. The cancellation notice must specify the specific LEP Account to be canceled if the Customer maintains more than one account with Lexbe. Notice to any Lexbe staff member alone will not serve as an effective termination notice if it does not otherwise meet the requirements of this subsection.
(c) The Customer may terminate an LEP Flex Account by notifying Lexbe of Account cancellation at least five business days prior to the end of any month. Such a timely cancellation will be effective on the last day of the current month and the LEP Flex Account will be billable for the month of termination and invoiced in the succeeding month in arrears. Otherwise, the cancellation will be effective as of the last day of the following month and invoiced in arrears the next month.
(d) Cancellation will not limit the term of an existing LEP Subscription Account, as such accounts are non-cancellable for the current subscription term. The Customer may terminate an LEP Subscription Account by notifying Lexbe of account cancellation, subject to the following requirements in this subsection. To be effective, the termination notice must be sent a minimum of (i) sixty days before the end of any current subscription term (original or renewal), or (ii) a minimum of thirty percent of the total days of the total current subscription term, whichever is fewer days. Otherwise, the LEP Subscription Account will automatically renew at the end of the current term for a new subscription term equal to the current subscription term. For example, if the current subscription term is for fourteen months total, then the renewal term under this subsection would be an additional fourteen months as well.
(e) All LES-Only Accounts may be canceled at any time, subject to payment of contracted or ordered Services.
14. Termination by Lexbe. Lexbe may terminate Customer’s and any User’s access to the applicable Account, if Customer or any User fails to comply with this Agreement. Lexbe may terminate an existing Account upon a material breach of this Agreement or an Incorporating Agreement by the Customer or any User. Any breach of the Customer’s payment obligations (after 10 days when due) or unauthorized use of Lexbe Technology or Lexbe Services (at any time) by the Customer, the Customer Authorized Agent, or 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.
15. Customer Data following Account Termination. On cancellation or termination of any LEP Account, Lexbe has no obligation to retain the Customer Data. In particular, Lexbe may delete Customer Data from LEP upon termination or expiration of an LEP Account for any reason. For smaller accounts with limited Customer Data, prior to the termination of an Account the Customer or Authorized Users should download and save any Customer Data that the Customer or Authorized Users wish to retain, utilizing Briefcase or Production functionality within LEP. For larger LEP Accounts, Lexbe Professional Services can on request provide an Archive for $35/GB plus the hourly cost of Professional Services staff in preparing and completing the Archive, provided the Customer’s Account is not past due and any Lexbe request for a Deposit or future payment has been satisfied by the Customer.
16. Representations and Warranties. The Parties and Customer’s Users each represent and warrant to the others that each has the legal power and authority to enter into this Agreement and for Lexbe and the Customer, an Incorporating Agreement if applicable. Lexbe represents and warrants it will use commercially reasonable efforts to provide access to LEP by the Authorized Users on an LEP Account, subject to any limitations or restrictions included in this Agreement or any Incorporating Agreement. The Customer and each User represent and warrant to Lexbe that:
(a) such Customer and User have not falsely identified themselves nor provided any false information to gain access to LEP,
(b) the Customer Account will be used only for the Permitted Use,
(c) the Customer and Users have the authority to access and use the Customer Data and to use Lexbe Services in connection with the Customer Account,
(d) the Customer and each User understand that LEP is a supplemental tool for experienced lawyers and other 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 Customer and each User agree that they are responsible for legal compliance regarding the Customer Data and not Lexbe, including the identification, collection, storage, usage, and transmission of any PII contained in Customer Data,
(f) Customer is a licensed attorney, or has retained a licenced attorney or attorneys to handle the matters which require the use of Lexbe Services and such attorney or attorneys will advise the Customer and Users as applicable in the proper use of Lexbe Services from a legal (not technical) perspective, and
(g) that the Customer 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-Associated Persons for any legal or technical advice.
17. Ancillary Services. If Lexbe is requested by the Customer or an Account Administrator to engage in Ancillary Services or Lexbe is required to engage in Ancillary Services through legal process in connection with or involving the Customer or Authorized Users, and Lexbe agrees to perform the Ancillary Services, then Lexbe will charge the Customer and the Customer will pay Lexbe for the Ancillary Services as performed by Lexbe personnel at Lexbe’s then-current hourly rates for the required personnel, plus any associated out-of-pocket expenses.
18. Indemnification. The Customer and Users shall indemnify and hold Lexbe and 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 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 Customer or Users of the Customer or Users’ representations and warranties; or (iv) a claim arising from the breach by the Customer or Users or the Customer or Users’ agents of this Agreement; provided in any such case that (a) Lexbe gives written notice of the claim to the Customer; (b) Lexbe gives the Customer sole control of the defense and settlement of the claim, provided that the Customer may not settle any claim unless the Customer obtains unconditionally releases of Lexbe and Lexbe-Associated Persons of all liability and such settlement does not adversely affect Lexbe’s business or the Lexbe Services; (c) Lexbe provides to the Customer all available information and reasonable assistance; and (d) Lexbe has not compromised or settled such claim.
Lexbe shall indemnify and hold the Customer 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 LEP 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 16 of this Agreement; provided in any such case that the Customer (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 Customer 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 Customer and Users shall indemnify Lexbe and Lexbe-Associated Persons pursuant to this Agreement, for claims arising from any infringement arising from the combination of LEP with any of the Customer 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 19-23.
19. Limitations in Lexbe Services. Lexbe may accept or reject any particular request for Lexbe Services. The Customer and Users understand, agree, and accept that Lexbe has not guaranteed any particular standard or level of Lexbe Services other than the Service Level Availability and that all services and software, are inherently imperfect and subject to error. The Customer and the Customer’s Users can and should maintain their own backup and archival copies of the Customer Data. Also, the Customer and Users understand and accept that substantially all computer software of any complexity, including Lexbe Technology, contains bugs, defects, and errors, and these bugs, defects, and errors can lead to errors in Lexbe Services. In particular, search, OCR, image (e.g., TIFF, JPG, PNG) and PDF creation, redaction, text and metadata extraction, and PST, email and file archive creations and extraction processes are complex and can and often are subject to various errors, inaccuracies, or limitations due to various factors, including the quality of input documents, variations in fonts, graphics, file types, or the general limitations of the technology. OCR technology, in particular, does not accurately convert handwriting, and OCR recognition can degrade substantially depending on font size or color, background color, scan quality, and other factors. All important documents included in Customer Data should be manually reviewed and the Customer and Users should not rely exclusively on Lexbe Technology. The standard of conduct and care in connection with Lexbe Services will be commercially reasonable care (subject to limitations in this Agreement), and not a ‘best-efforts’ or higher standard.
20. DISCLAIMER OF REPRESENTATION & WARRANTIES. EXCEPT AS SPECIFIED IN SECTION 16 OF THIS AGREEMENT, LEXBE AND LEXBE-ASSOCIATED PERSONS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE OF ANY KIND, WHETHER AN 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 LEXBE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, (B) LEXBE 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) LEXBE SERVICES ARE BUG-FREE, ERROR-FREE, OR DEFECT-FREE OR THAT BUGS, ERRORS OR DEFECTS WILL BE CORRECTED. LEXBE SERVICES, LEXBE TECHNOLOGY AND LEXBE CONTENT ARE PROVIDED TO THE CUSTOMER 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 ASSOCIATED PERSONS.
21. 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 COMPUTERS, THE INTERNET, AND ELECTRONIC COMMUNICATIONS. NO PARTY IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
22. LIMITATIONS OF LIABILITY.
(A) 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 LEXBE SERVICES, THIS AGREEMENT OR AN INCORPORATION AGREEMENT, EVEN IF THE PERSON FROM WHICH OR WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S ASSOCIATED PERSONS 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.
(B) LEXBE UTILIZES THIRD-PARTY SOFTWARE LIBRARIES AS PART OF LEXBE SERVICES AND LEXBE TECHNOLOGY AND LEXBE WILL HAVE NO LIABILITY IN CONNECTION WITH ANY FAILURE OF LEXBE SERVICES OR LEXBE TECHNOLOGY IN CONNECTION WITH THOSE LIBRARIES FOR ANY REASON, INCLUDING LEXBE’S SELECTION OR USE OR MISUSE OF THE LIBRARIES.
(C) 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 CUSTOMER IN CONNECTION WITH THE APPLICABLE ACCOUNT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR ONE-THOUSAND DOLLARS, WHICHEVER IS GREATER. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN LEXBE AND THE OTHER PARTIES. LEXBE’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY AND THIS IS UNDERSTOOD AND AGREED TO BY THE CUSTOMER AND USERS.
(D) IN NO EVENT WILL ANY OF LEXBE-ASSOCIATED PERSONS HAVE ANY LIABILITY OF ANY KIND, IN RELATION TO ANY MATTER INVOLVING LEXBE OR RELATED TO THIS AGREEMENT OR LEXBE SERVICES, AND THE CUSTOMER 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.
23. Reduced Statute of Limitations. The Customer and Users agree that regardless of any statute or law to the contrary, any Dispute arising out of or related to the use of the Lexbe Services, an Incorporating Agreement, or this Agreement made by Customer or Users must be filed within one year after said claim or cause of action arose or shall be forever barred.
24. Local Laws and Export Control. LEP or other Lexbe Services may be subject to United States export controls. LEP may not be downloaded, used, accessed, or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Russia, Syria, or any other country to which the U.S. has embargoed goods or services; 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 LEP or other Lexbe Services, Customer and each User (as applicable) represent and warrant 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.
25. Notice. Lexbe may give notice by means of any of the following: notice on an invoice, statement, receipt, or other billing document sent or provided to the Customer, notice by electronic mail to a Customer Authorized Agent, notice to Account Administrators made on an Account Administrator accessible page on LEP, general notice on LEP made available to Authorized Users, notice on login to LEP, notice in LexNotes, or an email message sent to Authorized Users. Lexbe may also give notice by written communication sent by first-class mail or pre-paid post to the Customer’s address on record in Lexbe’s Account information. In each instance, such notice will be deemed delivered when made available or sent and will bind the Customer and Users. The Customer and Users may give notice to Lexbe at any time by any of the following: 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 Inc., 8303 North MoPac Expressway. Suite B-225. Austin, TX 78759, addressed to the attention of: CEO; an email sent to [email protected].
26. Certain Privacy and Related Laws
(a) EU/Swiss Personal Data. To the extent that Customer or Users store, access, transmit, process, or otherwise use EU/Swiss Customer Data, in connection with the use of or access to LEP and the other Lexbe Services, then the EU/Swiss Data Processing Addendum, located at: www.Lexbe.com/EU-Swiss-Data-Processing-Addendum/, is incorporated by reference herein and shall control over inconsistent provisions in this Agreement.
(b) PRC Data. To the extent that Customer or Users store, access, transmit, process, or otherwise use PRC Customer Data, then this subsection will apply. The Customer shall be be responsible as the handler responsible for the collection, storage, use, alteration, transmission, provision, disclosure, and deletion of applicable PRC Customer Data from any natural persons resident of the PRC, and will independently determine the purposes and means of processing the applicable PRC Customer Data subject to PRC Data Protection Laws. In particular, the Customer represents with respect to any applicable PRC Customer Data, that (i) any necessary consent of the applicable individuals has been obtained, (ii) the applicable individuals have been informed of their rights under PRC Data Protection Laws, (iii) such PRC Customer Data is not collected or generated within the PRC by critical information infrastructure operators (CIIOs), or otherwise prohibited by PRC cybersecurity authorities, and (iv) to the knowledge of the Customer, no PRC state secrets are included in the PRC Customer Data. With respect to PRC Customer Data subject to PRC Data Protection Laws, Lexbe will be considered an entrusted party and will process the applicable PRC Customer as provided in this Agreement.
(c) Data Protection Laws Generally. The Customer will ensure that any Customer Data uploaded to LEP or otherwise provided to Lexbe meets the local law requirements of all applicable data protection laws and regulations in jurisdictions where custodians reside or Customer Data is collected. As applicable in any jurisdiction, the Customer and not Lexbe will be the data controller as defined under the applicable data protection laws, and as data controller, the Customer shall be responsible for, and shall exercise control over, the processing of personal data, ensuring such processing is in compliance with applicable data protection laws, including removal of PII as required. Lexbe will take necessary measures to safeguard the security of the applicable Customer Data and assist the Customer of its obligations, as provided in this Agreement and as required under applicable data security laws on request.
27. Modifications to This Agreement. Lexbe reserves the right to modify or amend the terms and conditions of this Agreement at any time, effective upon posting of an updated version of this Agreement on LEP, at Lexbe.com, or by providing notice as provided in Section 25. When revised, the Revision Date at the top of this Agreement will also be modified. Subsequent renewal of an LEP Account, or continued use of LEP after any such modifications (except as provided in the next sentence), shall constitute the Customer’s and Users’ consent to such changes. If the Customer or an Authorized User objects to the modifications, then the objecting Customer 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 Customer or Authorized User. Upon such objection, the objecting Customer or Authorized User may continue using Lexbe Services as before the modification, but this Agreement will terminate with respect to the objecting Customer or Authorized User at the end of the then-current License Term for an applicable LEP Account 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 for an applicable LEP Account, but not more than 45 days following the objection. Lexbe and any particular Customer or Authorized User may enter into a written modification to this Agreement to govern the relationship between Lexbe and such particular Customer (and applicable Account) or Authorized User and such agreement will control over this Agreement. To be effective, such modification between Lexbe and the particular Customer or Authorized User must be written, specifically refer to this Agreement as a modification or amendment, and be signed by the CEO of Lexbe to be effective against Lexbe.
28. Assignment. The Customer and Authorized Users may not assign this Agreement without the written consent or Lexbe. Upon the event of Lexbe’s merger, acquisition, or sale of substantially all of its assets, Lexbe may assign its rights and obligations under this contract to the assignee without the need for obtaining prior consent from the other Parties.
29. Disputes Resolution.
(a) Arbitrated Matters. If a Dispute arises between or among Customer, Users, and Lexbe, other than a Collection Action, a Technology Injunction Action, or an Interpleader Action, 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 for arbitration under current AAA arbitration rules.
(b) Non-Arbitrated Matters. Should the arbitration provisions in subsection (a) above become inapplicable or unenforceable for any reason, then the Customer, Users, and Lexbe agree that jurisdiction over and venue of such Dispute shall be exclusively in the applicable Texas state courts sitting in Travis County, TX, and the US District Court for the Western Division of Texas, Austin Division. Such matter will be heard by a judge without a jury, and THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL.
(c) Attorney Fees. If a Party employs attorneys to enforce any right in connection with any Dispute, whether arbitrated or litigated in a court or other tribunal of competent jurisdiction, the prevailing Party shall be entitled to recover reasonable attorneys’ fees. The prevailing Party will be determined to be the Party that has most successfully proven the Party’s claims in the matter, not merely the Party that has received a positive reward.
30. Agreement Interpretation. The failure by any Party to enforce any right or provision in this Agreement or any Incorporating Agreement shall not constitute or operate as a waiver of such right or provision by such Party unless expressly and specifically acknowledged and agreed to by such Party in writing. Whenever possible, each provision of this Agreement and any Incorporating 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 or any Incorporating Agreement. If a Party is entitled under this Agreement or any Incorporating 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 for any reason or for no reason, unless this Agreement or any Incorporating Agreement provides expressly and specifically to the contrary. This Agreement and any Incorporating Agreement will not be construed in favor of one Party or another, no matter who drafted this Agreement, any Incorporating Agreement, or any provision. References to ‘include’, ‘includes’, ‘including’ or the like will be interpreted as being without limitation, and shall not be interpreted as being restricted to the referenced items.
31. Interpleader Available. If there is a Dispute regarding ownership of Customer Data, Customer authorizes Lexbe, on behalf of the Customer and the Customer’s Users, to bring an Interpleader Action and to have its legal and other expenses in connection with Interpleader Action reimbursed.
32. No Legal Partnership or Joint Venture. No joint venture, partnership, employment, or agency relationship exists between Customer, Users, Lexbe, Associated Persons of Lexbe or Customer, as a result of this Agreement or the provision or use of the Services.
33. 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.
34. Survival. The provisions of Sections 18-33 will survive termination of this Agreement for any reason.
35. 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.
36. Entire Agreement. This Agreement, and if applicable an Incorporating Agreement, comprise the entire agreement and understanding between the Customer, the 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 Customer, the Users, and Lexbe.
37. Definitions. The following terms will have the following meanings in this Agreement:
“Account(s)” refers to the use of LEP and other Lexbe Services, by the Customer and Authorized Users, as reflected in the accounting or other records of Lexbe, or as described in an Incorporating Agreement.
“Account Administrator(s)” means (a) anyone designated as an Account Administrator in an Incorporating Agreement, and (b) one or more individuals granted elevated rights in an LEP Account by or at the direction of the Customer, including the ability to add and remove LEP Account Cases and Users, instructing Lexbe regarding the applicable Customer Account(s), and otherwise administering the use of LEP on behalf of the Customer and Users. The Customer’s Account Administrators may also designate other Customer Account Administrators on behalf of the Customer within LEP.
“Account License” has the meaning described in Section 1 of this Agreement.
“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 Master Services Agreement, as applicable between Lexbe, the Customer, and its Users, as may be updated from time to time pursuant to this Agreement. This Agreement may be incorporated by reference into any Incorporating Agreement or Order.
“Ancillary Services” means services or other activities requested of Lexbe or Affiliates by the Customer 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 Lexbe eDiscovery Services.
“Associated Persons” means an entity’s officers, directors, owners, employees, independent contractors, attorneys, agents, and Affiliates. “Customer-Associated Persons” are the Associated Persons of the Customer. “Lexbe-Associated Persons” are the Associated Persons of Lexbe.
“Authorized Agent” means any individual with authority to bind the Customer.
“Authorized User(s)” means a Customer’s Account Administrator(s) and other Customer-Associated Persons who are authorized to use LEP by an Account Administrator, and have been supplied user identifications by an Account Administrator (or by Lexbe at the request of an Account Administrator(s) or other Authorized Agent of the Customer)
“Briefcase” means the ability of a User to create a download including specified Customer Data as part of an LEP Account. Briefcases should not be used as a substitute for a Production. Production functionality in LEP should be used instead for that purpose.
“Case Archive” means a service provided by Lexbe Professional Services staff to download Customer Data from a Case, including as requested for specifically designated or all documents: Productions, Briefcases, User-created facts and issues, User-created notes, and supported metadata and User-coded data in a Case.
“Client Financial Services Addendum” means a written agreement titled as ‘Client Financial Services Addendum’ or similar between Lexbe, Customer, and Customer’s litigant client, which provides, among other things, that
“Collected Statistics” means usage data, performance information, metadata, analytics, and similar information collected in the course of diagnosing, providing or improving the Lexbe Services, or for internal business processes.
“Collection Claims” means claims for the enforcement of payment obligations of the Customer to Lexbe, debt recovery, or any other claims by Lexbe seeking to collect monetary amounts owed by Customer to Lexbe under this Agreement for non-payment of Lexbe Services.
“Confidential Information” means information and knowledge concerning the business and operations of Customer or Lexbe, as applicable, including information regarding the financial position, customers, customer lists, and suppliers, and 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.
“Consulting Services” means a Service to provide project management, or other miscellaneous eDiscovery-related consulting services offered by Lexbe to Customer, billed hourly at contracted or current rates.
“Culling Services” means a Lexbe Service to reduce the amount of the Customer Data to be loaded into a Customer LEP Account, by applying Customer-supplied date ranges, custodian filters, file type or extension filters, and search terms.
“Custom Development” means any software or other Intellectual Property Rights specifically designed and developed for the Customer by Lexbe, including any modification, customization, or configuration of Lexbe Technology. Any Custom Development undertaken by Lexbe in its discretion shall be owned by Lexbe and become part of the Lexbe Technology.
“Customer” means the individual or entity (a) identified as Customer in an Incorporating Agreement, and/or (b) paying for an Account License as reflected in the Order or in Lexbe’s billing records. If the Customer is using LEP on behalf of an Affiliate as an agent of the Affiliate, then the Customer refers as well to the Affiliate, and the Affiliate is bound by this Agreement.
“Customer Authorized Agent” means an individual who: (i) executed the Incorporating Agreement on behalf of the Customer, (ii) is an Account Administrator, or (iii) otherwise is an Authorized Agent of the Customer.
“Customer Data” means all ESI related to or uploaded to Customer’s Account(s), or any other Case-related data, information, or material provided or submitted by a Customer or Customer’s Users to Lexbe in the course of utilizing Lexbe Services, but excluding any Lexbe Content.
“Customer Deposit” means a security deposit for future payments or obligations that are or may be owed on a Customer Account that Lexbe may request at any time, including a request for an increase in an existing Customer Account deposit amount. The Customer Deposits are held by Lexbe in a non-segregated bank account until the close of the Customer Account and not applied to current billings, unless earlier applied to accrued current or accrued billings, or released to Customer in Lexbe’s discretion after one year of timely payment of billings. Failure of the Customer to provide a requested Customer Deposit, or an increase in the Customer Deposit, may result in Lexbe suspending Customer Account access or canceling a Customer Account.
“Customer Feedback” means requests, suggestions, ideas, recommendations, product enhancements, statements, quotes, feedback, information, and any other content provided by Customer, Customer-Associated Persons, or Users in the course of or related to using the Lexbe Services.
“Customer Support Policy” means Lexbe’s current customer support policy, available at: https://lexbe.com/resources/platform-documentation/
“Default LEP Account Rate” means a billing rate of $15/GB per month for the applicable quantity in GBs of LEP Account Storage in an LEP Account.
“Designated Services” mean certain Lexbe Services that may be specified in an Incorporating Agreement as initial Services that Customer authorizes Lexbe to undertake. The Designated Services are intended to be specified initial Services only and not to be a limitation of Lexbe Services requested or authorized by Customer generally.
“Dispute” means a dispute arising out of or relating to this Agreement, an Incorporating Agreement, or the breach thereof, or relating to the use of Lexbe Services, or to any acts or omissions of any kind for which the Customer or Users contend Lexbe or Lexbe-Associated Persons are or may be liable.
“Early Case Storage Account” means a Lexbe Account provided to the Customer to store Customer Data not previously processed and stored in LEP, including pre-processed native files, or productions from other eDiscovery Platforms that have not been previously loaded to LEP.
“Effective Date” means in connection with any Account, the earlier of, as applicable: (a) the date specified in an Incorporating Agreement as an effective date, (b) the date an Incorporating Agreement is signed by the Parties, and (c) the first date a Customer’s User begins using LEP.
“ESI” means electronically stored information, including electronic documents and other electronic files and data of any kind.
“EU/Swiss Customer Data” means EU/Swiss Personal Data as defined in the EU/Swiss Data Processing Agreement, located https://www.lexbe.com/EU-Swiss-Data-Processing-Addendum/, and incorporated by reference herein.
“Forensics Services” means activities of Lexbe digital forensics experts and other staff who assist in the process of locating, accessing, preserving, collecting, investigating, manipulating, and analyzing ESI for litigation discovery, consulting, and related testimony if required. Forensics Services are billed hourly at contracted or current rates.
“Free Customer Support” means Lexbe’s policy of providing limited free customer support to Users of LEP as detailed in Lexbe’s current Customer Support Policy. Support requests requiring or utilizing Lexbe Staff assistance outside of Lexbe Free Customer Support policy, including priority and emergency support requests, should be submitted to Professional Services, and are billable under Professional Services contracted or current rates. Lexbe may also limit or suspend Free Customer Support for Customer at any time in Lexbe’s discretion, including if the Customer is past due on payment obligations to Lexbe, or if Users have not been trained or require retraining for optimal LEP usage.
“Free ESI Upload Service” refers to a Lexbe service to load previously collected Customer Data to a Customer LEP Subscription Account, with no hourly or per GB loading charge, so long as: (a) the LEP Subscription Account has at least a six-month remaining term on the Account, and (b) the Customer Data to be loaded is considered ‘standard’ under Lexbe’s current Customer Support Policy. Non-standard loads will incur hourly billing charges from Lexbe’s Professional Services staff at contracted or current hourly rates.
“GB” means 10^9 bytes of data, such as Customer Data, rounded up to the nearest whole GB.
“Incorporating Agreement” means (a) any written agreement between Lexbe (which is signed by an executive officer of Lexbe) and any person that incorporates by reference this Agreement, including any agreement titled “eDiscovery Account & Work Authorization” between Lexbe and Customer, or the like, and (b) any email communication or correspondence from Lexbe to Customer confirming the renewal of an LEP Subscription Account, the transfer of the Customer Data between LEP Accounts, Orders, or other similar communications relating to an Lexbe Account, so long as sent to a Customer Authorized Agent and evidencing the intentions of Lexbe and the Customer to form an agreement.
“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 or use of, or access to, the Customer Data.
“LEP” or “Lexbe eDiscovery Platform” means Lexbe’s web-based eDiscovery hosted review application developed, operated, and maintained by Lexbe, accessible via https://www.Lexbe.com, https:/www.eDiscoveryPlatform.com, and/or other websites or IP addresses as may be designated by Lexbe, and comprising part of Lexbe Technology and Lexbe Content, to which Customer’s Users may be granted access under this Agreement in connection with an LEP Account.
“LEP Account(s)” means one or more separate accounts maintained by Customer to utilize LEP, on behalf of the Customer and the Customer’s Users. LEP Accounts include use of an Account License to LEP by the Customer and Authorized Users, as otherwise provided in this Agreement.
“LEP Account Storage” has the meaning described in Section 9.
“LEP Case” means a designation of an LEP Account specific to a litigation case, investigation, or other legal matter. One LEP Account may contain multiple LEP Cases.
“LEP Flex Account” refers to an Account with month-to-month usage of LEP based on variable usage, as described in Section 8(a) of this Agreement.
“LEP Hibernation Account” refers to an Account in which the Customer or any Customer Administrator has elected to maintain in a near-access storage-only mode for Customer Data transferred from a pre-existing LEP Flex Account or LEP Subscription Account, with no User access during the period of hibernation, as described in Section 8(c) of this Agreement.
“LEP Subscription Account” refers to a Customer Account with a term commitment, usually multi-year, and is limited to specified maximum Account GB storage, as described in Section 8(b) of this Agreement, with Overage charges for any excess usage. Subscription Accounts include Subscription-Prepaid and Subscription-Installment Accounts, and both are non-cancellable for the subscription term.
“LES” or “Lexbe eDiscovery Services” includes Consulting Services, Culling Services, Forensics Services, Professional Services, Technical Services, Transactional eDiscovery Services, and Ancillary Services.
“LES-Only Accounts” means Accounts using LES Services, but with no LEP Customer access. LES-Only Accounts do not include use of an LEP Account License to LEP by the Customer and Authorized Users.
“Lexbe” means Lexbe Inc., a Texas corporation, and its successors and assigns.
“Lexbe Content” means the written, audio and visual information, documents, software, products, and services contained or made available to Customer or Customer’s Users in the course of using Lexbe Services, including Lexbe Technology, but excluding the Customer Data.
“Lexbe Marketing Materials” means blog and social media posts, LexNotes or other newsletters, case studies, Lexbe’s websites, and other promotional or marketing materials, and other promotional materials.
“Lexbe Services” means LEP and LES Services.
“Lexbe Technology” means Lexbe’s Intellectual Property Rights used by Lexbe in connection with Lexbe Services, or otherwise made available to Customer or Customer’s Users by Lexbe in connection with Lexbe Services. Lexbe Technology includes any Custom Development and the resulting Intellectual Property Rights done at the request of the Customer.
“LexNotes” means Lexbe’s periodic newsletter sent to Users and Customer-Associated Persons.
“License Term” means the period of time during which the Customer or Authorized Users maintain an active Account License to use LEP pursuant to the applicable Incorporation Agreement or this Agreement.
“Order” means the record or records evidencing the submission or request for use of Lexbe Services, 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.
“Overage” means the quantity of Customer Data in an LEP Subscription Account that exceeds the maximum authorized LEP Account Storage in the LEP Subscription Account.
“Party(ies)” refers to Lexbe and Customer.
“Permitted Use” means the use of LEP or other Lexbe Services for a legal purpose in connection with a Customer’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, or anyone working as an agent or on behalf of a competitor. Additionally, LEP is intended solely for the legal review of documents and other data included in an LEP Account and related Production. Any use substantially for processing of the Customer Data only is not allowed in an LEP Account and instead a quote for Transactional eDiscovery Services for processing of the Customer Data should be requested instead. No Users are permitted to use LEP or other Lexbe Services unless use is legal in the User’s residence and location of use, and the User is at least 18 years of age.
“PII” or “Personally Identifiable Information” refers to any information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual. Specific elements considered PII vary by jurisdiction and context, but may include the following:
(a) Full name, maiden name, mother’s maiden name, or alias.
(b) Personal identification numbers, including Social Security or other national or jurisdictional identification numbers, passport numbers, driver’s license numbers, taxpayer identification numbers, patient identification numbers, financial account numbers, or credit card numbers.
(c) Email addresses and social media, or other internet account information.
(d) Phone or other telecommunication numbers or identifiers.
(e) Street or other residence address.
(f) Personal characteristics, such as or including photographic images that include identifying characteristics, x-rays, fingerprints, or other biometric image or template data.
PII also includes personal health information, including demographic information, medical histories, test and laboratory results, mental health conditions, insurance information and other data that a healthcare professional collects to identify an individual and determine appropriate care, sometimes referred to as ‘PHI’.
“PRC Customer Data” means Customer Data collected from Users or other custodians who are natural persons residing in the People’s Republic of China (PRC), or otherwise subject to PRC Data Protection Law.
“PRC Data Protection Laws” means the 2017 Cybersecurity Law, 2021 Data Security Law, 2021 Personal Information Law, and any similar laws or regulations of the PRC meant to protect the privacy of PRC residents or the security interests of the PRC.
“Proceeding” means an actual or anticipated lawsuit, arbitration, mediation, or 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.
“Professional Services” means any electronic discovery, project management, or other litigation support services of any kind, provided by Lexbe staff at the request of the Customer, Customer-Associated Persons, or Authorized Users. Professional Services are usually billable at contracted or current hourly billing rates of Lexbe staff.
“Production” means the ability of a User to create a litigation production download of specified responsive documents as part of an LEP Account.
“Promotional Account” means an Account that Lexbe may make available from time to time on a trial or other promotional basis to new Customers. Promotional Accounts may be of limited duration as determined by Lexbe and may be subject to other restrictions.
“Service Level Availability” means access to LEP Account at least 99.99% 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 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) Customer’s or Customer’s Users’ acts or omissions (or acts or omissions of others engaged or authorized by Customer or Customer’s Users), including any negligence, willful misconduct, or use of LEP in breach of this Agreement; (e) outages elsewhere on the Internet that hinder access to the Customer’s Account.
“TB” means 10^12 bytes of data, such as Customer Data, rounded up to the nearest whole GB.
“Technical Services” means activities of Lexbe-staff computer IT, programmers, or other technical professionals or experts who assist in special projects for Customers in relation to LEP or other Lexbe Services. Technical Services are billed hourly by Lexbe staff at contracted or current rates.
“Technology Injunction Action” means a Proceeding brought by Lexbe before a court or other tribunal with competent 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’.
“Transactional eDiscovery Services” mean the application of processing, AI or other computational processes to transform, identify, tag and/or code Customer Data, including Culling Services, Assisted Review+, Email Threading+, NearDupe Grouping+, Auto-Language Detection+, Auto-Language Translation+, Cognitive Image Recognition+, Audio Transcription+, Email Sentiment Analysis+, Entity Recognition+, Native Processing+ (to Native & PDF), Native Processing+ (to TIFF), eDiscovery PDF OCR+, and eDiscovery TIFF OCR+. Transactional eDiscovery Services are billed based on varying factors, including hourly billing of Professional Services staff, per GB applied to Customer Data, and per page of documents included in Customer Data.
“Unauthorized User(s)” means individuals accessing LEP who are not Authorized Users.
“User(s)” means Authorized Users and Unauthorized Users. If a User is using LEP 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 LEP, as well as a Party (other than Lexbe) to an Incorporating Agreement.