Last updated May 12, 2023
END-USER LICENSE AGREEMENT
This End-User License Agreement (this “Agreement”) is between LawCatch, Inc. (“Vendor”) and you (“Customer”).
- Vendor provides a software application known as BriefCatch™ and all related maintenance services to Customer.
- Customer acknowledges that BriefCatch™ provides editing suggestions only, and that in no way do any of the suggestions, in isolation or in combination, constitute legal advice. Customer is solely responsible for all writing and editing decisions made in connection with BriefCatch™.
- Customer acknowledges that any license key provided in connection with BriefCatch™ is unique to that Customer and that Customer shall not share any such license key with anyone else without express written permission from Vendor.
In consideration of the terms and mutual covenants in this Agreement, the parties agree as follows:
Article 1 – Definitions and Interpretive Provisions
1.1 Definitions and Defined Terms. Each term defined in the preamble and Background of this Agreement has its assigned meaning, and each of these terms has the meaning assigned to it:
- “Customer Content” has the meaning assigned to it in Section 2.1.
- “Customer Feedback” has the meaning assigned to it in Subsection 4.1(a).
- “Customer’s Associates” has the meaning assigned to it in Subsection 7.1(b).
- “Documentation” means the Software’s standard user documentation.
- “Effective Date” is the date that this Agreement is electronically executed by both parties.
- “Indemnified Claim” has the meaning assigned to it in Subsection 7.1(a)
- “License Fees” has the meaning assigned to it in Subsection 3.1(a).
- “License Provisions” has the meaning assigned to it in Section 10.9.
- “Purpose” has the meaning assigned to it in Section 5.3.
- “Software” means Vendor’s BriefCatch™ software, in object code format.
- “Specifications” means Vendor’s standard specifications for the Software set forth in its then-current Documentation.
- “Term” is one calendar year from the Effective Date, unless otherwise provided in Section 9.1 below.
- “Upgrade” means a new version, update, or upgrade of the Software.
1.2 Interpretive Provisions.
- The words “including,” “includes,” and “included” are deemed to be followed by the words “without limitation.”
- All references to “Dollars” or “$” refer to the lawful currency of the United States of America.
Article 2 – Licenses & Delivery
- “Customer Content” means any content or data that the Customer uses or generates while using the Software.
2.2 Vendor License. Vendor grants Customer a non-exclusive license to download, reproduce, and use the Software during the Term if Customer complies with the restrictions in Section 2.6 below.
2.3 Customer License. Customer retains all rights, including intellectual property rights, to all Customer Content. Vendor is not responsible for any Customer Content.
2.4 Vendor License. Only as required to use BriefCatch, Customer grants Vendor a worldwide, non-exclusive, royalty-free license to access, analyze, and display Customer Content and to create and revise derivative works while using the Software. Upon termination of each software use, Vendor will not store, retain, or back up any Customer Content.
2.6 Restrictions on Software Rights. Copies of the Software created or transferred under this Agreement are licensed, not sold. The Customer receives no title to or ownership in the Software or any copy of the Software. Nor does Customer receive any rights to the Software other than those specifically granted in Section 2.2 above. In addition to the general prohibitions above, Customer shall not do any of the following:
- modify or create derivative works from the Software,
- distribute, publicly display, publicly perform, or sublicense the Software;
- use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or
- reverse-engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.
2.7 Documentation. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.
2.8 Delivery. Vendor shall provide Software and Documentation to Customer through a reasonable system of electronic download within two days of the Effective Date.
2.9 Upgrades. During the Term, Vendor shall provide Customer with copies of all Upgrades, without additional charge, promptly after commercial release. Upon delivery to Customer, each Upgrade will constitute an element of the Software and will be subject to this Agreement’s terms that relate to Software, including the license, warranty, and indemnity terms.
Article 3 – Fees & Reimbursement
3.1 Fees. Customer shall pay Vendor as follows:
- License Fees. For the licenses granted in Article 2 above, $____ per user per Term (“License Fees”).
- Automatic Renewal. At the end of the Term, the licenses granted in Article 2 shall automatically renew for the same period as the initial Term; provided that Vendor gives Customer 30 days’ written notice of any increase in License Fees.
- Cancellation of Renewal. Customer may cancel such renewal by providing Vendor at least seven days’ written notice before the end of the Term.
- Invoices. Payment against all invoices is due within 30 days of receipt of the invoice.
Article 4 – Intellectual Property & Feedback
- “Customer Feedback” means 1) any comment on the Software or 2) any suggestion or idea Customer provides to Vendor for modifying any of Vendor’s products or services, including the intellectual property rights in any such suggestion or idea; provided that Customer Feedback includes no comment, suggestion, or idea that contains any of Customer’s previously designated Confidential Information.
4.2 Intellectual Property Rights in the Software. Subject to the license limitations in Article 2 above, Vendor retains all right, title, and interest in and to the Documentation and Software, including Upgrades. Customer understands that the Software and its components are protected by copyright, patent, and other intellectual property laws.
4.3 Customer Feedback License. Customer grants Vendor a perpetual, irrevocable, worldwide license 1) to use or exploit any Customer Feedback and 2) to grant sublicenses in Customer Feedback without compensation or any obligation to report on its use, and subject to no other restrictions. Notwithstanding the provisions of Article 5 below, Feedback will not be considered Customer’s Confidential Information.
Article 5 – Confidential Information
- “Confidential Information” means any of the following information that Vendor discloses to Customer:
- any document Vendor marks “Confidential”;
- any information Vendor orally designates as “Confidential” at the time of disclosure;
- any non-public features, functions, and sensitive information that significantly different from publicly available information.
5.2 Exceptions to Confidential Information. Confidential Information does not include information that:
- is in Customer’s possession at the time of disclosure;
- is independently developed by Customer without use of or reference to Confidential Information;
- becomes known publicly, before or after disclosure, unless because of Customer’s unauthorized action or inaction;
- is approved for release in writing by Vendor; or
- is integral to the use of BriefCatch in legal practice (such as in explaining editing choices to clients or colleagues). Customer acknowledges that the Confidential Information may include Vendor’s valuable trade secrets.
5.3 Customer Restrictions on Disclosure of Confidential Information. Customer may not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement. Customer may not disclose Confidential Information to, for example,
- any employee or contractor of Customer unless such person needs access to facilitate the transactions contemplated by this Agreement and executes a nondisclosure agreement with Customer;
- any other third party without Vendor’s prior written consent.
5.4 Customer Duties to Protect Confidential Information. Customer shall
- protect Confidential Information with reasonable care, but in any event with o less than the degree of care it uses to protect its own confidential information of similar nature and importance;
- promptly notify Vendor of any misuse or misappropriation of Confidential Information that Customer knows of or should have known of;
- promptly notify Vendor of any legal or governmental demand for Confidential Information; and
- reasonably cooperate with Vendor to seek a protective order or to contest any such required disclosure, at Vendor’s expense.
5.5 Allowable Confidential Information Disclosures. Customer may disclose Confidential Information only if disclosure is required by the following:
- applicable law;
- proper legal authority; or
- proper governmental authority.
5.6 Injunction. Customer agrees that any breach of this Article 5 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation. In addition to any other remedy, Vendor will be entitled to seek injunctive relief against such breach or anticipatory breach, without proving actual damage or posting a bond or other security.
5.7 Termination & Return. For each item of Confidential Information, the obligations of this Article will terminate upon termination of this Agreement; provided that such obligations related to Vendor’s trade secrets shall continue so long as that information remains protected under applicable law.
- Termination Obligations. Upon termination of this Agreement, Customer shall
- return all copies of Confidential Information to Vendor; or
- certify their destruction in writing.
- Exceptions. Customer shall not be required to destroy:
- data from disaster recovery or business continuity backups;
- data stored in system-generated temporary folders or near-line storage;
- archived departed employee data with limited access; or
- material that is subject to legal hold obligations or commingled with other such material, provided that all such material remains confidential and is destroyed according to Customer’s standard retention schedules.
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license to it. Vendor will retain all right, title, and interest in and to all Confidential Information.
- Exception & Immunity. Under the Defend Trade Secrets Act of 2016, 18 U.S.C. Section 1833(b), Customer is on notice and acknowledges that notwithstanding anything in this Agreement:
- Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that is made:
- to report or investigate a suspected violation of law, and (A) in confidence to a Federal, State, or local government official, either directly or indirectly, or (B) to an attorney; or
- in a complaint or other document filed under seal in a lawsuit or other proceeding.
- Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who sues for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to their attorney and use this trade secret information in their court proceeding if the individual (1) files any document containing the trade secret under seal and (2) does not disclose the trade secret, unless ordered to do so by the court.
- Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that is made:
Article 6 – Representations & Warranties
6.1 Vendor’s Representations & Warranties.
- Fitness for Specified Purpose. Vendor represents and warrants that, during the term of this Agreement, the Software will perform materially as described in its Specifications.
- Intellectual Property Rights in Software. Vendor represents and warrants that it owns or licenses the Software and its components. Vendor further represents and warrants that it has and will maintain the full authority to grant the rights and licenses conveyed by this Agreement.
- Exception. These representations and warranties do not apply if any of the conditions listed in this Agreement would lead to infringement.
- Vendor Breach. If Vendor breaches this warranty, it will promptly:
- secure for Customer the right to keep using the Software;
- replace or modify the Software to make it non-infringing provided that such modification or replacement will not materially degrade any functionality listed in the Specifications; or
- refund a prorated amount of the license fee paid for the Software for the remainder of the Term beginning with the date Customer ceases to operate the Software.
- Remedies for Breach. Customer will not have any other remedies for breach of this subsection outside those listed in the preceding sentence.
6.2 Representations & Warranties from Both Parties. Each party represents and warrants the following:
- it has the authority to enter into, execute, and perform its obligations under this Agreement; and
- there are no claims or litigation known to Vendor that would have a material adverse impact on its ability to perform as required by this Agreement.
6.3 Warranty Disclaimers. Except for the express warranties in Sections 6.1 and 6.2 above, VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Vendor does not warrant that the Software will perform without error or that it will run without immaterial interruption. Vendor provides no warranty about, and will have no responsibility for, any claim arising out of the following:
- a modification of the Software made by anyone other than Vendor, unless Vendor approves that modification in writing;
- use of the Software by Customer either with an operating system not authorized, or hardware/software specifically forbidden by the Specifications or Documentation.
6.4 NO LEGAL ADVICE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT
- SHALL NOT RELY ON ANY PART OF SOFTWARE OR ITS SUGGESTIONS AND OUTPUTS AS LEGAL ADVICE, AND
- SHALL NOT COMMUNICATE OR CLAIM, TO ANY THIRD PARTY OR OTHER PERSON, THAT ANY PART OF SOFTWARE OR ITS SUGGESTIONS AND OUTPUTS ARE LEGAL ADVICE.
Article 7 – Indemnification
- “Indemnified Claim” means any third-party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right or proprietary right by the Software.
- “Customer’s Associates” means Customer’s officers, directors, shareholders, employees, parents, subsidiaries, agents, successors, and assigns.
7.2 Vendor & Indemnified Claims. Vendor shall defend, indemnify, and hold harmless Customer and Customer’s Associates against any Indemnified Claim.
- Exceptions. Vendor’s obligations set forth in this Subsection do not apply if an Indemnified Claim arises out of
- Customer’s breach of this Agreement;
- revisions to the Software made by Customer without Vendor’s written consent;
- Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement, provided Vendor offered such Upgrades without charges not otherwise required under this Agreement;
- Vendor’s modification of Software in compliance with specifications provided by Customer; or
- use of the Software in combination with hardware or software not provided by Vendor.
7.3 Litigation & Additional Terms. Vendor’s obligations under Section 7.2 will be excused if Customer’s or any of Customer’s Associates’ failure to provide prompt notice of the Indemnified Claim materially prejudices the defense. Vendor will control the defense of any Indemnified Claim, including appeals, negotiations, and any related settlement or compromise, provided that Customer will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires it to admit wrongdoing, concede liability, or subject it to future affirmative obligations.
Article 8 – Limitation of Liability
8.1 Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE COST OF A MONTHLY LICENSE FOR MONTHLY SUBSCRIBERS OR THE PRORATED COST OF A ONE-YEAR LICENSE FOR ANNUAL OR MULTI-YEAR SUBSCRIBERS, UNLESS OTHERWISE PROVIDED BY THIS AGREEMENT OR BY LAW.
8.2 Exclusion of Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS Artlcle 8 APPLY
- TO LIABILITY FOR NEGLIGENCE;
- REGARDLESS OF THE CAUSE OF ACTION;
- EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
- EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
8.4 Conflicts of Law. If applicable law limits the application of this Article’s provisions, Vendor’s liability will be limited to the maximum extent permissible. For clarity, Vendor’s liability limits and other rights set forth in this Article apply the same to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
8.5 Exceptions to Limitation of Liability. Sections 8.1 and 8.2 do not apply to:
- Indemnified Claims under Section 7 above; or
- claims for attorneys’ fees and other litigation costs recoverable by the prevailing party in any action.
Article 9 – Term & Termination
9.1 Term. This Agreement will remain in effect for one year from the Effective Date (“Term”).
9.2 Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, which is effective in 30 days unless the other party cures that breach within the 30 days.
9.3 Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software. The following provisions will survive termination or expiration of this Agreement:
- any obligation of Customer to pay fees incurred before termination;
- any other provision of this Agreement that must survive to fulfill its essential purpose.
Article 10 – Miscellaneous
10.1 Independent Contractors. The signatories are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
10.2 Notices. Notices under this Agreement shall be sent to the parties below, or to others that either party may provide in writing. Such notices will be deemed received at such addresses upon the earliest of
- actual receipt;
- delivery in person;
- by electronic mail with emailed confirmation of receipt; or
- by certified mail return receipt requested.
10.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will breach this Agreement when caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, pandemics, or other causes beyond the performing party’s reasonable control. If the Agreement is terminated due to such a cause, the Customer shall receive a pro rata refund for the remainder of the Term.
10.4 Assignment & Successors. Customer may not assign this Agreement or any of the rights or obligations it conveys without Vendor’s express written consent; provided that this Agreement shall be binding on and inure to the benefit of the parties’ successors and assigns.
10.5 Severability. To the extent permitted by applicable law, the parties waive any law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, that provision will be interpreted to fulfill its intended purpose as much as permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
10.6 Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will waive any other breach of this Agreement.
10.7 Restricted Rights: Government Entities. Use, duplication, or disclosure for or by the government of the United States, including any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable:
- in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or
- in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Vendor.
10.8 Customer Limits. Customer shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software.
10.9 Bankruptcy Rights. The rights and licenses granted to Customer in Article 2 (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Vendor is subject to any proceeding under the United States Bankruptcy Code, and Vendor as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, under 11 U.S.C. Section 365(n)(1) and (2), retain all rights granted to it under the License Provisions to the fullest extent permitted by law. This Section will not be construed to limit or restrict any right or remedy not set forth here, including the right to retain any license or authority this Agreement grants under any provision other than the License Provisions.
10.10 Choice of Law & Jurisdiction. The laws of Virginia govern all matters arising under or relating to this Agreement, including torts. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Arlington, Virginia.
10.11 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
10.12 Technology Export. Customer shall not
- permit any third party to access or use the Software in violation of any U.S. law or regulation; or
- export the Software or otherwise remove it from the U.S. unless done so solely to use the software under this Agreement or to comply with applicable U.S. laws and regulations.
- In addition to these general prohibitions, Customer shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
10.13 Merger. This Agreement constitutes the final, exclusive agreement between the parties on the matters in this Agreement. All earlier and contemporaneous negotiations and agreements between the parties on the matters in this Agreement are expressly merged into and superseded by this Agreement.
10.14 Counterparts. The parties may execute this Agreement in one or more counterparts, each of which is an original, and all of which constitute only one agreement between the parties.
10.15 Amendment. The parties may amend this Agreement only by the parties’ written agreement that identifies itself as an amendment to this Agreement.
To evidence the parties’ agreement to this Agreement, they have electronically executed it on the date set forth below (“Effective Date”).