This Agreement between CounselNow, LLC aka BankruptcyWatch (“Vendor”), 405 S Main, Ste 275B, Salt Lake City, UT 84111, and Customer, including the attached Schedules, is effective on the date that the Customer submits the account creation webform in which Customer affirms that they agree to these Terms of Service (the “Effective Date”).
The following definitions (and additional definitions provided below) will apply:
1.1. “Activation Date” is the date that Vendor first makes the Service available to Customer and provides email or written notice of such availability to Customer.
1.2. “Customer Data” means data, information or material provided or submitted by Customer or any User to Vendor in the course of utilizing the Services, and any PACER data or PACER metadata ordered by Customer using Vendor’s tools.
1.3. “Customer Representative” means the Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
1.4. “Pricing Schedule” means Exhibit A to this Agreement.
1.5. “Service” means Vendor’s online service as described in Exhibit B.
1.6. “Term” means the term of this Agreement as specified in Section 22.
1.7. “User” means one of Customer’s employees, representatives, consultants, contractors or agents expressly permitted by Customer in connection with Customer’s business affairs to use the Service and supplied User identifications and passwords by Customer.
1.8. “Vendor Content” means Vendor-supplied text, audio, video, graphics and other information and data available by means of the Service or on Vendor’s web site.
2. Customer Use of the Service
2.1. Vendor grants Customer a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement. Vendor will host the Service. Vendor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
2.2. Customer is licensed during the Term to store, print, and display the Vendor Content and to permit Users to access it only in connection with use of the Service. No other use of Vendor Content is permitted. Customer will maintain and will require its Users to maintain Vendor Content as Confidential Information (as defined below) of Vendor.
3. Number of Authorized Users
Customer is initially authorized to permit use by the number of Users listed in the Pricing Schedule.
Customer, by its Customer Representative, may add to the number of Users by contacting Vendor customer support by email or phone or by utilizing applicable management features of the Service. Customer will be bound by the instructions and authorizations provided by its Customer Representative.
4. Fees Generally
Customer agrees to pay fees as set forth in the Pricing Schedule.
5. User-Based Fees; Payment
Customer agrees to pay fees as set forth in the Pricing Schedule.
6.1. Billing will start on the Activation Date and thereafter will continue on the first of each month. Payment is due 10 days after the invoice date.
6.2. In addition to other applicable remedies, Vendor reserves the right to suspend or terminate Customer’s access to the Service or cause the entire outstanding amount owed under the contract to become due immediately, upon five days’ email notice, if Customer’s account becomes delinquent. Delinquent invoices are subject to interest of 5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs. Customer will be charged all applicable fees, including fees for all Users then authorized, during any period of suspension.
7. Account Information Submitted to Vendor
Customer agrees to provide Vendor in writing with billing and contact information as Vendor may reasonably require, including Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact, as well as the name, Username and password of the Customer Representative. Customer agrees to update this information promptly by means of email to email@example.com, and in any case within 15 days, if there is any change.
8. Appropriate Use of the Service
8.1. Customer may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Vendor’s prior written consent.
8.2. Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Customer agrees not to access (or attempt to access) the Service by any means other than through the interfaces that are provided by Vendor, unless it has been specifically allowed to do so in a separate agreement with Vendor. Customer specifically agrees not to access (or attempt to access) any of the Service through any automated means (including use of scripts or web crawlers) other than the application programming interface (API), and shall ensure that it complies with the instructions set out in any robots.txt file present on the Services. Customer will be responsible to ensure that its Users do not submit any Objectionable Matter or otherwise violate any of the terms or conditions of this Agreement. In addition, Vendor may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Vendor web site; Customer and Customer’s Users will be bound by any such rules. Vendor reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any Vendor rules regarding appropriate use, but is not obligated to do so. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and the Vendor Content, including laws involving private data and any applicable export controls. Vendor reserves the right to terminate this Agreement for cause in case the Customer materially breaches the provisions of this Section 8.
8.3 Vendor may refuse to process requests that would involve processing amounts of data more than 30 times the average amount associated with requests of the same type.
8.4. Vendor reserves the right to suspend or terminate, on five days notice in writing or by email, any Customer or User account for activity that is disrupting or causing harm to Vendor’s computers, systems or infrastructure or to other parties.
9. Passwords and Access
Customer is responsible for all activities that occur under Customer’s User accounts. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. Customer agrees to notify Vendor immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.
10. Customer Data
10.1. All Customer Data submitted by Customer to Vendor, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.
10.2. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Vendor may gather anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Vendor.
10.3. On a monthly basis during the Term, Vendor will, upon receipt of a request by Customer, in writing or by email, to Vendor customer support, make one backup of the then current Customer Data available to the Customer via FTP server in Vendor’s standard format. Additional backup services are available at additional cost; Customer may contact Vendor customer support for details.
10.4. Vendor will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use.
11. Limited License to Customer Data
Subject to the terms and conditions of this Agreement, Customer grants to Vendor a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service and to retain and reuse data collected from federal court documents and systems while collecting information on behalf of Customer.
12. Vendor’s Ownership
Vendor and its suppliers retain all rights in the Service and Vendor Content, including all title, copyright, and other proprietary rights in the Service and any underlying software and Application Programming Interface. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The Vendor name, the Vendor logo, and the product names associated with the Service are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent. Vendor may retain and reuse data collected from federal court documents and systems while collecting information on behalf of Customer.
13. Restrictions on Use of the Service
Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Vendor Content, (iv) develop or enter into any agreement for third-party development of any product, service, or system that competes, in whole or in part, with the system or component elements disclosed hereunder, including without limitation data capture functions that retrieve or generate similar information, text mining or screenscraping functions from federal court information, including without limitation information that may be gleaned from html, xml, pdf, text, or other document or graphic forms found or presented on the internet or (v) copy any features, functions or graphics of the Service or the Vendor Content. Customer will not “frame” or “mirror” the Service, use, resell or exploit the Service and/or the Vendor Content except as expressly permitted in this Agreement.
Vendor reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.
15. Warranty Regarding the Service
Vendor warrants that the Service will perform in all material respects the functionality as described in this document and documentation related to the Service. As an accommodation to Customer, Vendor may supply Customer with Limited Production Programs (which may be labeled “Alpha” or “Beta”). These products are not suitable for production use or use with live data, are provided on an “as-is” basis without warranty of any kind, and are not covered by the Warranties set forth herein.
16. Service Level Warranty
Vendor warrants during the Term of this Agreement that the Service will meet the applicable service level stated in Exhibit C. If Vendor does not achieve such service level, Vendor will provide Customer upon request with a credit as described in Exhibit C as Customer’s sole and exclusive remedy. To claim a remedy under this Section, Customer is required to notify Vendor within 15 days of the occurrence of the failure to provide the applicable service level.
17. Additional Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
18.1. Vendor will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or Vendor Content (other than that due to Customer Data). In case of such a claim, Vendor may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Vendor may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. This section states Customer’s sole and exclusive remedies for infringement or claims alleging infringement. Vendor shall have no liability for any claim of infringement based on use of a superseded or altered release of the Service if the infringement would have been avoided by the use of a current unaltered release of the Service.
18.2. Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 8 (Appropriate Use of the Service) or 9 (Passwords and Access) above.
18.3. Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Vendor of all costs (including attorneys’ fees) incurred by Vendor as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Vendor for its staff time in responding to such third party subpoena or compulsory legal order or process at Vendor’s then applicable hourly rates.
18.4. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability or the subjecting of the Indemnitee to a requirement to pay any consideration or submit to any injunction.
19. Disclaimers and Limitations
19.1. The warranties expressly stated in this agreement are the sole and exclusive warranties offered by Vendor. There are no other warranties or representations, expressed or implied, including without limitation, those of merchantability or fitness for a particular purpose. Except as stated in sections 15, 16 and 17 above, the service and Vendor content are provided to Customer on an “as is” and “as available” basis. Customer assumes all responsibility for determining whether the service or the information generated thereby is accurate or sufficient for Customer’s purposes. Vendor does not warrant that the use of the system will be error-free or uninterrupted. Vendor is not responsible for software installed or used by Customer or users or for the operation or performance of the internet.
19.2. Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the license fees due for the 1 month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to Customer breach of Sections 5 or 6, in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
19.4 Customer agrees and acknowledges that this Agreement does not create an attorney-client relationship between Vendor and Customer and that Vendor is not a legal service provider. Customer agrees and acknowledges that Services provided by Vendor constitute general legal information, procedures, options, and strategies and that Vendor’s Services are not legal advice.
20.1. “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
20.2. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
20.3. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for three (3) years after the termination or expiration of this Agreement.
20.4. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
20.5. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
21. Term and Termination
21.1. The Term commences on the “Effective Date.” The “Activation Date” will be the date that Vendor first makes the Service available to Customer and provides email or written notice of such availability to Customer.
21.2. The initial term of this Agreement (“Initial Term”) will begin on the Effective Date and will end after 12 months. This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Customer provides notice of termination not less than 90 days before the end of the Initial Term or current Renewal Term, as applicable. Applicable pricing will continue unchanged from the previous term unless Vendor notifies Customer of changes in pricing at least 90 days prior to the expiration of the Initial Term or current Renewal Term, as applicable.
21.3. Vendor, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 10 business days of notice of such breach.
21.4. In the event that this Agreement is terminated (for any reason), Vendor will, within 5 days of a Customer’s request, make available one backup of the Customer Data in Vendor’s standard format. Customer agrees and acknowledges that Vendor has no obligation to retain and may delete Customer Data that remains in Vendor’s possession or control more than 60 days after termination.
21.5. The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for Vendor’s discharge of its post-termination obligations, and the following Sections and paragraphs: 5.2 (Overdue Payments), 10.1 (Customer Data), 12 (Vendor’s Ownership), 13 (Restrictions on Use of the Service), 18 (Indemnification), 19 (Disclaimers and Limitations), 20 (Confidentiality), 21.4 (Return of Customer Data), 21.5 (Survival of Provisions), 22 (Notice), 24 (Arbitration), 25 (Non-Solicitation), and 26 (Miscellaneous).
Vendor and Customer may give notice by means of electronic mail to an email address on record or by written communication sent by first class mail or by courier service. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. A party may, by giving notice, change its applicable address, email, or other contact information.
This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.
Any dispute arising under this Agreement or the termination of this Agreement will be subject to arbitration in the city of Salt Lake, under the commercial rules of the American Arbitration Association before a single arbitrator. The parties will share the arbitration fees equally. Any award will be enforceable in any court of competent jurisdiction and will not be inconsistent with the terms of this Agreement. Nothing herein will prevent a party’s application to a court of law for injunctive relief to prevent irreparable harm.
During the Term of this Agreement and for a period of two years thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed or engaged as an independent contractor by Vendor or (ii) hire or engage for any services any person employed or engaged as an independent contractor by Vendor.
26.1. Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Utah and applicable US federal law. Except as provided in the arbitration clause, the state and federal courts located in the city of Salt Lake will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
26.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
26.3. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement or use of the Service.
26.4. No Waiver. The failure of Vendor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.
26.5. Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
26.6. Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.
Pricing will be agreed upon separately by email.
Vendor provides a collection of web services, web pages, subscription services, PDF Data Extraction and information storage services that allows Customer to interact with the PACER system to view information about cases, claims, creditors, filings and parties contained in the PACER system, to view and download documents contained in the PACER system and to extract information from the PDFs of PACER documents. Vendor also provides initial implementation and training of up to 5 hours, which must be used within 90 days of the Activation Date of a particular Service.
Service Level Agreement
1. Service Level Warranty: Vendor’s warranty is 99.9% Uptime (as defined below).
2. Remedy: If the warranted level of uptime is not provided, the Customer will be entitled to a credit to Customer (subject to the applicable procedures in this Agreement) in accordance with the following schedule, as follows:
Uptime Level Available Credit
99.9%–99.1% Credit equal to 10% of monthly service fee
99.0%–98.1% Credit equal to 20% of monthly service fee
98.0%–97.0% Credit equal to 30% of monthly service fee
Below 97% Credit equal to 40% of monthly service fee
3. “Uptime” means the service is operational and is available to communicate with the Internet in Vendor’s server location (which may be at a co-location facility).
4. This credit does not apply to the extent that the failure to achieve the Uptime is due to (a) circumstances that are subject to the Force Majeure clause of this Agreement, (b) scheduled maintenance and system upgrades, (c) Customer’s misuse of the Services, (d) changes to PACER policies, or (e) changes to or downtime on PACER’s website affecting the performance of Vendor’s tools and Web services. In the event PACER’s policies or website changes, Vendor will notify Customer of the expected or actual outage within one (1) business day of Vendor becoming aware of the problem and will work to remedy the outage until the available steps to restore service have been completed.