DAMAGES GENIE TERMS OF — USE
Effective: August 28, 2018
You agree to these Terms by using the Services, and you understand and agree that Damages Genie will treat your use of the Services as acceptance of these Terms from that point onwards. If you do not agree to the Terms, you are not authorized to use any Services. If you are an individual who is entering into these Terms on behalf of an entity, you represent and warrant that you have the power to bind that entity, and you hereby agree on that entity’s behalf to be bound by these Terms, with the terms “you,” and “your” applying to you, that entity, and other users accessing the Services on behalf of that entity.
a) Provision of Services. Subject to the terms, conditions, and restrictions set forth in these Terms, Damages Genie hereby grants to you a non-exclusive, non-transferable, limited right and license to access and use the Services.
b) No Implied License. You acknowledge and agree that these Terms shall in no way be construed to provide you any express or implied license to:
i) copy, reproduce, modify, change, alter, translate, improve, prepare derivative works based on, decompile, disassemble, reverse engineer, sell, rent, lease, distribute, sublicense, or otherwise transfer your right to access and use the Services; or
ii) use the Services other than as expressly set forth in these terms.
c) Restrictions on Use of Services. You acknowledge and agree that:
i) sharing of Damages Genie accounts by more than one natural person is not permitted;
iii) you will not engage in any conduct using or involving the Services that would constitute a criminal offense or give rise to civil liability under any law, rule, regulation, treaty, or convention.
d) No Legal Advice Intended. You acknowledge that Damages Genie has not and will not render any opinions or provide any business, legal or accounting advice regarding the Services whatsoever. Any professional services, consultation, training, information and forms provided by Damages Genie are provided for informational purposes only, and not for the purpose of providing legal, accounting or business advice. Damages Genie STRONGLY RECOMMENDS THAT YOU CONSULT WITH YOUR OWN LEGAL COUNSEL FAMILIAR WITH YOUR LEGAL REQUIREMENTS AND LEGAL/REGULATORY OBLIGATIONS REGARDING SERVICES OBTAINED PURSUANT TO THESE TERMS.
e) Confidentiality and Non-Disclosure Agreement. Damages Genie does not maintain or have access to any client data captured or maintained by the software platform. All such data is stored in an off-site, encrypted server hosted by a third party provider. Damages Genie personnel do not have access to that encrypted data. For purposes solely of providing IT or technical support, as may be requested by Attorney Users from time to time under these terms of service, Damages Genie support personnel may obtain temporary, incidental access to client data through remote access to Attorney Users’ accounts, if such access is expressly granted by the Attorney User for the purpose of providing technical support. Damages Genie agrees not to maintain, use or disclose any such client data to which it has temporary access for any purpose whatsoever. The sole purpose for any such remote access to Attorney Users accounts is for providing technical support assistance at the express request of the Attorney User. No waiver of the attorney-client privilege, work product protection or confidentiality is intended by granting such temporary access to Damages Genie technical support personnel.
f) Notice of Security Breach. In the event that the third-party provider storing the information transmitted by client to attorney through the Damages Genie application gives notice to Damages Genie of any breach in the security of the encrypted data, Damages Genie will promptly inform all affected subscribers of such breach and the information received from the third-party provider with respect to the breach and any remedial measures taken or to be taken by the third-party provider.
2) SERVICE AVAILABILITY
a) Unavailability of Services. Access to or use of the Services may be subject to limitations, capacities, buffers, delays, and other problems inherent in the use of the Internet and electronic communications and third-party vendor systems and software. Damages Genie is not responsible for any such delays, delivery failures, or other damage resulting from such interruption of Services as a result of actions or omissions by you, Internet and electronic communications, or the performance, functions and limitations of the your IT system. Damages Genie will schedule routine maintenance or upgrade times during which the Services may be inaccessible.
3) YOUR RESPONSIBILITIES
a) You are solely responsible for all activities that occur in connection with your use of the Services. You shall:
i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data you provide;
ii) obtain sufficient rights to retain and use your data and personal data in conjunction with the Services;
iii) obtain all necessary written or other consents and authorizations from individuals or other third persons who access or use the Services in the course of using the app;
iv) prevent unauthorized access to or use of the Services and the personal data you process;
v) comply with all applicable laws, rules, regulations, treaties, and conventions in connection with your use of personal data and the Services; and
vi) not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
b) Use Restrictions.You shall use the Services solely for your internal business purposes as contemplated by these Terms and shall not: (i) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (ii) knowingly send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iii) knowingly interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iv) use the Services in contravention of any applicable laws or regulations; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
c) Suspension of Services for Ongoing Harm. Damages Genie may, at its sole discretion, suspend access to the Services if Damages Genie reasonably concludes that the Services are being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of the Services is causing immediate, material and ongoing harm to Damages Genie or others. You agree that Damages Genie shall not be liable to you nor to any third party for any suspension of the Services under such circumstances as described in this Section. Any suspension under this section shall not excuse you from your obligations under these Terms.
d) Legal Advice. Users that submit user content and provide or seek legal advice via the Services do so at their own risk.
e) No Representation or Warranties as to Attorney-Client Privilege. While reasonable steps have been taken by Damages Genie to ensure that the technology used in the Damages Genie platform is secure and not accessible by Damages Genie personnel or any unauthorized persons, Damages Genie makes no representations or warranties as to whether the data captured by the Damages Genie software platform is or will be considered attorney-client privileged and/or attorney work product protected by any particular court or hearing officer.
f) Attorney Users Responsible for Counseling Client on Use of Application. To the extent that users of the Damages Genie platform seek to assert the attorney-client privilege as to the information transmitted by client to the attorney through the Damages Genie application, Attorney Users of the Damages Genie platform are solely responsible for counseling their clients as to the use of the Damages Genie application in a manner that will preserve or support the assertion of the privilege, such as not exposing the information transmitted to the attorney to persons not within the scope of the attorney-client privilege.
5) PROPRIETARY RIGHTS
a) Ownership of the Services. As between the parties, Damages Genie and its licensors are the sole and exclusive owners of all worldwide rights, title, and interest (including all intellectual property rights) in and to the Services, and all modifications, extensions, customizations, scripts or other derivative works of the Services.
b) Reservation of Rights. Other than as expressly set forth in these Terms, no license or other rights in or to the Services or any intellectual property rights therein are granted to you, and all such licenses and rights are hereby expressly reserved.
a) Disclaimer. DAMAGES GENIE PROVIDES THE SERVICES “AS-IS” AND “WITH ALL FAULTS” AND DAMAGES GENIE DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (STATUTORY, EXPRESS, OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT DAMAGES GENIE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. DAMAGES GENIE DOES NOT WARRANT THAT THE SERVICES, ANY THIRD PARTY SOFTWARE OR HARDWARE — USED OR RECOMMENDED TO BE — USED IN CONJUNCTION WITH THE SERVICES, OR ANY OTHER PRODUCTS OR SERVICES FURNISHED BY DAMAGES GENIE UNDER THESE TERMS WILL MEET YOUR REQUIREMENTS, WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE SERVICES CAN OR WILL BE CORRECTED. DAMAGES GENIE MAKES NO WARRANTY AS TO THE ACCURACY OR RELIABILITY OF THE RESULTS TO BE OBTAINED FROM THE SERVICES OF THE INFORMATION TO BE OBTAINED FROM THE SERVICES. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SUCH THAT CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
a) Indemnification. To the extent permitted by law, you shall indemnify, defend, and hold Damages Genie and its employees, officers, directors, affiliates, and agents (collectively, “Representatives”) harmless from any and all claims, liability, expenses, fines and penalties, (including reasonable attorneys’ fees and costs) incurred in connection with claims made or brought against Damages Genie by a third party arising out of: (i) an allegation that your data or your use of the Services (as opposed to the Services themselves) infringe the intellectual property rights of, or have otherwise harmed, a third party; (ii) your use of or access to the Services, including, but not limited to, obtaining all necessary written or other consents and authorizations from any third persons who access or use the Services in the course of doing business with you; (iii) breach of these Terms by you; and/or (iv) any unauthorized use of the Services by you or your affiliates. You shall reasonably cooperate as requested by Damages Genie in the defense of any claims. You waive any sovereign, governmental, or similar immunity with respect to the foregoing indemnification obligation, and any other obligation set forth in these Terms.
8) LIMITATION OF LIABILITY
a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF DAMAGES GENIE AND ITS REPRESENTATIVES FOR ALL CLAIMS ARISING FROM OR RELATING TO YOUR — USE OF THE SERVICES SHALL BE LIMITED TO $250.
b) Exclusion of Consequential and Related Damages. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL DAMAGES GENIE OR ITS REPRESENTATIVES HAVE ANY LIABILITY FOR ANY LOSS OF DATA, LOSS OF — USE, BUSINESS INTERRUPTION, LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CA– USED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. DAMAGES GENIE AND ITS REPRESENTATIVES WILL NOT BE LIABLE FOR THE CORRUPTION, UNAUTHORIZED DISCLOSURE OR ERASURE OF DATA OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS OR ANY INTERNET SERVICE’S OR OTHER THIRD PARTY’S SYSTEM OR NETWORK.
a) Termination and Suspension. Damages Genie may immediately terminate or suspend your right to use the Services at any time without notice if you fail to comply with any provision of these Terms.
10) GOVERNING LAW AND ARBITRATION
a) Governing Law. These Terms shall be construed in accordance with, and governed by, the laws of the State of California without regard to the application of conflicts of law principles.
b) Arbitration. You and Damages Genie agree that any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration conducted in the English language, administered by ADR Services in Los Angeles, CA., in accordance with its Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as may be required by law, neither you nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both you and Damages Genie. Either you or Damages Genie may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. You and Damages Genie also may, without waiving any remedy under these Terms, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Any litigation involving you and Damages Genie shall be conducted under seal, and any court filings shall be filed under seal. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
11) DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
a) It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, we will promptly terminate without notice the accounts of users that are determined by us to be “repeat infringers.” A repeat infringer is a user who has been notified by us of infringing activity violations more than twice and/or who has had a user submission removed from the Service more than twice.
b) If you are a copyright owner or an agent thereof, and you believe that any content hosted on or through the Services infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Our Designated Copyright Agent with the following information in writing:
i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Service are covered by a single notification, a representative list of such works on the applicable Service;
iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material;
iv) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).
c) Our Designated Copyright Agent to receive notifications of claimed infringement can be reached at Genie Harrison, Genie Harrison Law Firm, 523 W. 6th Street, Suite 707, Los Angeles, CA. 90014.
d) You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
a) Rights of Third Parties. These terms shall not create any rights or benefits which are enforceable by any third parties.
b) Waiver. No failure or delay on the part of Damages Genie in exercising any right or remedy with respect to a breach of these Terms shall operate as a waiver thereof or of any prior or subsequent breach of these Terms, nor shall the exercise of any such right or remedy preclude any other or future exercise thereof or exercise of any other right or remedy in connection with these Terms.
c) Additional Terms. Some Damages Genie Services may be subject to additional posted guidelines, rules or terms of service (“Additional Terms”) and your use of such Services will be conditioned on your agreement to the Additional Terms. If there is any conflict between these Terms and the Additional Terms, the Additional Terms will control for that Service, unless the Additional Terms expressly state that these Terms will control.
d) Severability. Should any provision(s) of these Terms be deemed unenforceable by a court, arbitrator, or other tribunal of competent jurisdiction, it shall be deemed deleted to the minimum extent necessary in the relevant jurisdiction (which can include deleting only part of the relevant provision) and the remaining provisions of these Terms shall remain in force and enforced to carry out the intentions of the parties as set forth herein.
e) Entire Agreement. These Terms constitute the entire agreement between Damages Genie and you relating to the subject matter and supersedes all previous or contemporaneous agreements, whether written or oral, between Damages Genie and you with respect to the subject matter, unless you have agreed to or are otherwise bound by a License and Services Agreement with Damages Genie.
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