SUBSCRIPTION SERVICES AGREEMENT FOR PIPL+ AND PRIVACY+
XL Law & Consulting P.A. ("XL Law") will provide subscription services to the colleges, individual universities that operate independently, individual universities that operate in affiliation with university systems, university system central administrative offices, foundations of higher education institutions or other related higher education entities, whether such entities are established as a company, corporation, partnership, sole proprietorship or government agency or instrumentality ("Subscriber") identified on a XL Law Subscription Services Purchase Order ("Purchase Order"), subject to all of the terms and conditions set forth herein below (the "Terms"), on the Purchase Order and in any other document incorporated herein by reference (collectively, the "Agreement"). Subscriber and XL Law hereby confirm their mutual intention to be legally bound by this Agreement, as of the date stated on the Purchase Order ("Effective Date"), upon XL Law's acceptance of Subscriber's subscription order.
I. SUBSCRIPTION SERVICES.
a. License. XL Law grants Subscriber, during the term of the Agreement, a non-exclusive, non-transferable, limited license to access and use PIPL+ and Privacy+ (together the "Subscription Services") and the XL Law Materials (as defined in Section III (a)) for internal use only, in accordance with the provisions expressly set forth herein.
i. License Restrictions. Subscriber shall not, and shall ensure that its personnel, including Authorized Users, do not share passwords or access or use the Subscription Services or XL Law Materials except to the extent expressly permitted herein.
b. Eligible Persons and Authorized Users.
i. Eligible Persons. Only Subscriber's employees, temporary employees, students, board of directors, and officers, dedicated to performing work exclusively for Subscriber (to the extent those categories of persons are appropriate to Subscriber's institution) are eligible to access and use the Subscription Services and XL Law Materials ("Eligible Persons"). Without limitation, external professional service providers such as attorneys, accountants, outsourcers, contractors, and public relations firms are specifically excluded from being Eligible Persons.
ii. Authorized Users. The term "Authorized User" means an Eligible Person whom Subscriber has identified to XL Law for purposes of issuing an XL Law Subscription Account, provided that, unless otherwise stated on the Purchase Order, all Authorized Users must be personnel in one or more of the business units, departments, divisions, administrative groups and/or office locations listed on the Purchase Order ("University Units"), not to exceed the maximum number of Authorized Users indicated for each University Unit ("Authorized User Count"). In addition, access to the Services may be subject to using passwords, user IDs or other security devices ("Security Credentials") provided by XL Law, and such Security Credentials shall not be shared. XL Law may change Security Credentials with notice to Subscriber or the Authorized Users for security reasons.
Subscriber agrees that each XL Law Subscription Account may only be used by the Authorized User to whom XL Law assigns it and that the XL Law Subscription Account may not be shared with or used by any other person, including other Authorized Users. For the avoidance of doubt, concurrent usage or sharing of any Subscription Services by any of Subscriber's personnel who are not Authorized Users is not permitted. Subscriber will manage Subscriber's roster of Authorized Users and will promptly notify XL Law to deactivate an Authorized User's XL Law Subscription Account if the Authorized User is no longer an Eligible Person or Subscriber otherwise wish to terminate the Authorized User's access to the Subscription Services. Subscriber is responsible for all use of the Subscription Services accessed with XL Law Subscription Accounts issued to Subscriber's Authorized Users, including associated charges, whether by Authorized Users or others. Subscriber will use reasonable commercial efforts to prevent unauthorized use of XL Law Subscription Accounts assigned to Subscriber's Authorized Users and will promptly notify XL Law, in writing, if Subscriber suspects that an XL Law Subscription Account is lost, stolen, compromised, or misused. Subscriber represents and warrants Subscriber is neither identified on, nor shall Subscriber provide access to, the Subscription Services to any individuals or entities identified on: (a) OFAC's list of Specially Designated Nationals ("SDN List"); (b) the UK's HM Treasury's Consolidated List of Sanctions Targets; (c) the EU's Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions; (d) any other applicable sanctions lists issued by any other countries or judication; or (e) any entity 50 percent or more owned, directly or indirectly, individually or in the aggregate by a person(s) identified in (a) through (d).
c. Usage. Subject to the restrictions set forth in Section I(f) and otherwise herein, Authorized Users are permitted, in each case solely in the regular course of Subscriber's internal use, and in a manner that is not commercially prejudicial to or competitive with XL Law in each case, to:
i. search, view, and display XL Law Materials in printed or electronic form (as permitted under Section I(e));
ii. quote, summarize and otherwise incorporate XL Law Materials (appropriately cited and credited where applicable), in whole or in part, in documents, memoranda, articles, reports, other similar documents and work product prepared by Authorized Users on the Subscriber's behalf ("Subscriber Materials"); and
iii. to the extent not expressly prohibited by this Agreement, to use XL Law Materials as permitted under the fair use provision of U.S. and other applicable copyright laws.
i. Authorized Users may store Subscriber Materials prepared in compliance with Section I(c) in Subscriber's database (the "Database") in connection with Subscriber's provision of legal services to its clients or for its own practice (if applicable) or internal use, business, or educational activities.
ii. Authorized Users may store all other XL Law Materials in the Database if maintained (1) in connection with a specific active or ongoing matter or project being handled by Subscriber in the regular course of its business (a "Matter") or (2) in Insubstantial Portions (as defined below) (x) if otherwise maintained in the regular course of Subscriber's business, legal and other research and related work in connection with Subscriber's internal use, business, or educational activities, and (y) in accordance with Subscriber's record retention policies, provided that such policies are consistent with prevailing industry standards. As used herein, "Insubstantial Portions" means amounts of XL Law Materials that, individually or in the aggregate, (a) have no independent value other than as part of Subscriber's work product and (b) could not be used in any way in whole or part as a substitute for any product or service provided by XL Law or any affiliate of XL Law or any third-party that licenses, contributes, or otherwise provides any content, features or other materials to XL Law for inclusion in the Subscription Services.
iii. The Database must consist preponderantly of Subscriber's work product, with access to XL Law Materials limited to internal users who have a need to know such information.
iv. Authorized Users may maintain XL Law Materials in the Database: (i) under clause (d)(i) above until the relevant Matter becomes inactive or is no longer ongoing, or until termination of the Agreement (in accordance with Section I(f)(iv)), whichever occurs first and (ii) in Insubstantial Portions under clause (d)(ii) above in accordance with the terms thereof.
e. Print Outs and Electronic Distribution.
i. Authorized Users may print, or otherwise reproduce, in hard copy form, and share with third parties on as as-needed basis, or transmit, distribute or disseminate in electronic format, Subscriber Materials prepared in compliance with Section I(c) in connection with Subscriber's provision of legal services to its clients or for its own University Unit (if applicable) or internal use, business, or educational activities.
ii. With respect to all other XL Law Materials (provided that all printouts and other reproductions of such XL Law Materials retain all proprietary notices appearing on such reproductions, unaltered), Authorized Users may:
1. in connection with a Matter, print, or otherwise reproduce, in hard copy form, such XL Law Materials, and share such hard copies with, or transmit, distribute or disseminate such XL Law Materials in electronic format to its own University Unit for internal business and educational uses only, and
2. in all other cases, print, or otherwise reproduce, in hard copy form, Insubstantial Portions of such XL Law Materials, and share such hard copies with, or transmit, distribute or disseminate Insubstantial Portions of such XL Law Materials in electronic format to Subscriber's internal clients only in the regular course of Subscriber's business or for the Subscriber's internal use, business, or educational activities.
iii. All other distribution, dissemination or transmission of electronic or hard copies of XL Law Materials or Subscriber Materials by Subscriber or any Authorized Users is prohibited.
f. Access and Use Restrictions.
i. No Authorized User shall (A) copy, download, scrape, store, publish, post, transmit, retransmit, transfer, distribute, disseminate, broadcast, circulate, sell, resell, or otherwise use the XL Law Materials, or any portion thereof, in any form or by any means except as expressly permitted by Section 1(b), or as otherwise expressly permitted in writing by XL Law, or (B) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of any XL Law products or services, including the Subscription Services and the XL Law Materials (as applicable), their components, or any avenue by which any of them are accessed.
ii. No Authorized User shall distribute any XL Law Materials to a third party for such third party’s independent use. Such third parties include without limitation Subscriber’s affiliated entities including without limitation any foundations or other organizations that operate for the benefit or under the auspices of Subscriber, and, in the case of a university system, any other institutions or organizations that comprise Subscriber’s university system.
iii. No Authorized User shall use any XL Law Materials or distribute any XL Law Materials to a third party for use in a manner contrary to or in violation of any applicable federal, state, or local law, rule or regulation.
iv, No Authorized User shall remove or alter any copyright notices from any saved, downloaded or otherwise reproduced XL Law Materials (other than Subscriber Materials prepared in compliance with Section I(c)(ii) and the other provisions of the Agreement.
v. In the event of termination of this Agreement in its entirety or with respect to any one or more individual Subscription Services, as applicable, on or before the date on which the Subscription Service terminates Subscriber shall remove all copies of XL Law Materials related to each such terminated Subscribed Service from its computers, servers, networks and electronic media, with the exception of (A) any such XL Law Materials that were substantially amended or incorporated in Subscriber Materials prior to termination in accordance with Section I(c), and (B) Insubstantial Portions of such XL Law Materials as expressly provided under Section I(d).
II. FEES AND PAYMENT TERMS.
a. Fees and Taxes. Subscriber shall pay the subscription fees ("Fees") in the amount(s) indicated on the Purchase Order. The Fees do not include any sales taxes or other applicable taxes that may be imposed by any taxing authority in any jurisdiction in connection with the subscription ("Taxes"), and Subscriber shall be responsible for all such Taxes. Subscriber's payment(s) of Fees and applicable Taxes shall be due within 30 days after the date of XL Law's invoice(s), or such other period as may be stated on the Purchase Order. Late payments may accrue interest at a monthly rate of 1% of the overdue balance.
b. Adjustments. Fees are based on the Authorized User Count(s) for the University Unit(s) corresponding to the Subscription Service(s) at the start of the Initial Term and each Renewal Term (as defined in Section IV(a)), all as stated on the applicable Purchase Order. Accordingly, XL Law may adjust the Fees and payment terms for each Renewal Term, to reflect changes in Subscriber's Authorized User Count(s) and University Unit(s), market conditions and XL Law's general price structure, upon providing Subscriber with an updated Purchase Order indicating such adjustments.
III. INTELLECTUAL PROPERTY; REFERENCES.
a. XL Law Subscription Materials. Subscriber acknowledges that all articles, notes, documents, updates, text, images, html, data, databases, email messages, advertisements and other contents, resources, Subscription Materials, know-how and services produced, published, displayed, distributed or provided by XL Law in, on or through the XL Law websites, services or publications and all software and other technology hosted or used by XL Law to provide its websites and services (collectively, the "XL Law Subscription Materials" or "XL Law Materials") and all copyrights, trade secrets, patents, trademarks and other intellectual property rights in the XL Law Subscription Materials are exclusively owned by XL Law, its affiliates and their licensors. Other than the limited rights expressly granted in Section I, nothing in the Agreement shall be construed to grant Subscriber or any of its personnel, including Authorized Users, any right, title, interest or license in or to any XL Law Subscription Materials for any purpose whatsoever.
b. References. XL Law and its affiliates shall not be entitled to identify the Subscriber in customer lists, marketing Subscription Materials, print publications, websites, sales calls and proposals without Subscriber’s prior written approval in each instance.
c. XL Law represents and warrants that the XL Law Subscription Materials do not infringe any third party intellectual property rights and indemnifies Subscriber against any losses, costs, or expenses Subscriber may incur resulting from any claim that Subscriber’s use of the Subscription Services or XL Law Materials infringes any third party intellectual property rights.
IV. TERM AND TERMINATION.
a. Term and Renewal. XL Law will provide the Subscription Service(s) commencing on the Effective Date for the Initial Term indicated on the Purchase Order (or, if none is indicated, an Initial Term of one year), and thereafter for successive one-year renewal terms commencing on each anniversary of the Effective Date ("Renewal Terms"), unless and until a Subscription Service is terminated with respect to any or all of the Subscription Services as provided in Section IV(b) or Section IV(c).
b. Termination by Subscriber. Subscriber may terminate a Subscription Service (i) with respect to any or all of the Subscription Services, effective at the end of the Initial Term or the current Renewal Term, by giving XL Law written notice of termination at least 30 days prior to the beginning of the next Renewal Term or (ii) with respect to any Subscription Service(s) affected by XL Law's material breach of the Agreement, if XL Law does not cure such material breach within 30 days after Subscriber gives XL Law written notice of such material breach.
c. Termination by XL Law. XL Law may terminate a Subscription Service (i) with respect to any Subscription Service(s) affected by Subscriber's material breach of the Agreement, if Subscriber does not cure such material breach within 30 days after XL Law gives Subscriber written notice of such material breach, (ii) immediately upon giving Subscriber written notice, in the event that Subscriber fails to pay any Fees or Taxes when due in accordance with Section II(a), or (iii) at any time, without cause, effective upon giving Subscriber written notice of termination.
d. Effect of Termination. In the event of termination of a Subscription Service of the XL Law Subscription Materials under the Agreement in its entirety or with respect to one or more individual Subscription Services, as applicable, Subscriber shall remove all copies of XL Law Subscription Materials related to such terminated Subscription Services in accordance with Section I(f)(iv) above. If a Subscription Service is terminated by Subscriber for cause pursuant to Section IV(b)(ii) or by XL Law without cause pursuant to Section IV(c)(iii), XL Law shall refund, on a pro rata basis, Fees paid by Subscriber for the affected Subscription Service(s), for the unused subscription period following the effective date of termination. In any other circumstances, XL Law has no liability to refund any fees to Subscriber for the earlier termination of the Subscription Services, and Subscriber access will continue until the last day of the Term for which the Subscriber has paid.
a. No Legal Services. XL Law Subscription Services provides Subscribers with practical legal know- how and resources to inform and support a Subscriber's and its Authorized Users' University Unit on various developments in law and policy, subject to XL Law's own professional expertise, judgment and interpretation. The XL Law websites and services, including the Subscription Services, are general and educational in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of individual transactions and cases. By use of Subscription Services, XL Law, its affiliates and their editorial staff do not represent or advise clients in any matter and are not bound by the professional responsibilities and duties of a legal practitioner. Nothing in the XL Law websites or services or in the Terms, nor any receipt or use of such XL Law websites and services, shall be construed or relied on by Subscriber, its Authorized Users or their clients as creating any attorney-client relationship or providing any legal service, representation, advice or opinion whatsoever on behalf of XL Law, its affiliates, their editorial staff or any law firm, lawyer or other independent contributor of articles or other Subscription Materials to the XL Law websites and related services.
b. Editorial Policy. Subscriber acknowledges that XL Law's editors may maintain the Subscription Services by adding, updating, reorganizing and removing XL Law Subscription Materials from time to time, without notice, to address changes in law and market conditions and for other purposes in XL Law's sole discretion.
c. Third-Party Subscription Materials. XL Law's websites may contain sponsored services and advertising, as well as links to third-party websites and services and other publicly available websites (collectively, "Third-Party Subscription Materials"). Subscriber acknowledges that the Third-Party Subscription Materials are not part of the XL Law services for any purpose, and that XL Law shall have no responsibility or liability for the content or legality of any Third-Party Subscription Materials.
d. NO WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, ALL XL LAW PRODUCTS AND SERVICES, INCLUDING THE SUBSCRIPTION SERVICES AND XL LAW SUBSCRIPTION MATERIALS, ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS, DELAYS AND NON-INFRINGEMENT.
f. Force Majeure. XL Law shall have no liability or responsibility hereunder to the extent that its performance of any obligation is prevented or delayed by circumstances or events beyond its reasonable control, including but not limited to acts of God, fire, flood, accident, unavailability of resources or supplies, default by suppliers, failure or unavailability of public utilities, the internet or data communications facilities, labor disputes, compliance with law, regulation or court order, war, riot or terrorism.
g. XL Law shall use its best efforts to ensure that the Subscription Services are provided continuously and that access to the Subscription Services is not interrupted by any event within XL Law’s control. XL Law shall notify Subscriber in advance of planned downtime, which, to the extent reasonably practicable, shall be outside of U.S. Eastern Standard time business hours.
VI. LIMITATIONS OF LIABILITY.
SUBSCRIBER'S EXCLUSIVE REMEDY AND XL LAW'S, ITS AFFILIATES' AND/OR CONTRIBUTORS' ENTIRE LIABILITY UNDER THE AGREEMENT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO PRODUCTS OR SERVICES WHICH ARE MADE AGAINST THEM, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT OR NEGLIGENCE, EXCLUDING ONLY ANY CLAIMS BY SUBSCRIBER FOR INDEMNIFICATION PURSUANT TO SECTION 3(C), SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER DURING THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL XL LAW, ITS AFFILIATES AND/OR CONTRIBUTORS BE LIABLE TO SUBSCRIBER FOR ANY CLAIM(S) RELATING IN ANY WAY TO (I) SUBSCRIBER'S INABILITY TO USE PRODUCTS OR SERVICES, OR ITS INABILITY OR FAILURE TO PERFORM LEGAL OR OTHER RESEARCH OR RELATED WORK OR TO PERFORM SUCH LEGAL OR OTHER RESEARCH OR WORK PROPERLY OR COMPLETELY, EVEN IF ASSISTED BY XL LAW PRODUCTS OR SERVICES, OR ANY DECISION MADE OR ACTION TAKEN BY SUBSCRIBER IN RELIANCE UPON XL LAW SUBSCRIPTION MATERIALS OR (II) THE PROCURING, COMPILING, INTERPRETING, EDITING, WRITING, REPORTING OR DELIVERING OF XL LAW SUBSCRIPTION MATERIALS. IN NO EVENT SHALL XL LAW, ITS AFFILIATES AND/OR CONTRIBUTORS BE LIABLE TO SUBSCRIBER FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO SUBSCRIBER'S RIGHTS UNDER THE AGREEMENT EVEN IF XL LAW, ITS AFFILIATES AND/OR CONTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, XL LAW SHALL HAVE NO LIABILITY WHATSOEVER TO SUBSCRIBER FOR ANY CLAIM(S) RELATING IN ANY WAY TO ANY THIRD-PARTY SUBSCRIPTION MATERIALS. SUBSCRIBER ACKNOWLEDGES THAT PROVISION OF PRODUCTS AND SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT WERE MATERIAL FACTORS IN THE DETERMINATION OF SUBSCRIPTION FEES.
VII. GENERAL TERMS.
a. Applicable Law. The Terms and any claim, action, suit, proceeding or dispute arising out of the provision or use of XL Law's services shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Florida without regard to the conflicts of laws provisions thereof.
b. Limitation of Claims. Except for claims relating to Fees or misuse of products or services, no claim arising out of the Agreement, regardless of form, may be made, nor such claim brought, under the Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it.
c. Integration. The Agreement sets forth the entire agreement and understanding between XL Law and the Subscriber pertaining to the subject matter and merges all prior discussions between them on the same subject matter. The headings and captions contained in the Terms are for convenience only and do not constitute a part of the Agreement.
d. Amendment and Waiver. These Terms may only be modified by a written document mutually executed by the parties. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
e. Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that no such consent shall be required for XL Law to assign its rights and obligations to any affiliate of XL Law or to any third-party successor to all or substantially all of its assets of equity interests.
d. Notice. Unless otherwise agreed to by the parties, all notices hereunder that are required or permitted to be in writing shall be deemed effective when received by either overnight delivery or email sent to the respective addresses on the Purchase Order, return receipt.
e. Severability. In the event that any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions will continue in full force and effect.