Leximation, Inc. - Ask Scott Terms and Conditions
Last updated: 4 March 2005
This Agreement covers all advice, samples, coding, and software that result from the use of the Ask Scott service provided by Leximation, Inc.
NOTICE: PLEASE READ THIS AGREEMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY, ALL HEREIN "PERSON") AND LEXIMATION, INC. AND ANY OF ITS SUPPLIERS AND LICENSORS (ALL HEREIN, "LEXIMATION"). BY PURCHASING "ASK SCOTT TIME," YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN, SIGNED, NEGOTIATED AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THIS SERVICE.
Leximation offers the Ask Scott service as phone and email technical support Monday through Friday from 9:00 AM to 5:00 PM (U.S.A. Pacific Time), exclusive of those holidays and vacation days observed by Leximation. Support requests received outside the hours listed above will be processed the next business day. The price per hour for the Ask Scott feature may increase at any time, but the increase shall not apply to any pre-purchased time. Leximation may, at its discretion, cease the Ask Scott service. In the unlikely event this should happen, any fees paid therefor in advance shall be refunded to you within thirty (30) days of Leximation's cessation of such services.
In order to open an Ask Scott account, you must purchase a minimum of 10 minutes of time at the then-current rate. If purchased with a credit card through the corporate website, the time is immediately available for use. If paid by check, the time will be available upon receipt of funds. Time spent on your behalf by Leximation's employees is deducted from your account. A current accounting of your available time is always available at http://www.leximation.com/askscott/. You have seven (7) days to dispute the time deducted for any given task; after seven (7) days the time is undisputable. If you have concerns or questions regarding advice provided through the Ask Scott service, contact Leximation immediately, and we will do our best to make things right.
LIMITATION OF LIABILITY. THE "ASK SCOTT" SERVICES ARE PROVIDED "AS IS." IN NO EVENT WILL LEXIMATION BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, BUSINESS INTERRUPTION, DATA LOSS OR CORRUPTION), WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. LEXIMATION DOES NOT CLAIM OR WARRANT THAT ITS DELIVERABLES WILL BE WITHOUT DEFECT OR ERROR OR WILL SATISFY THE REQUIREMENTS OF CLIENT'S COMPUTER SYSTEM. LEXIMATION DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CLIENT MAY OBTAIN BY USING THE DELIVERABLES, AND DISCLAIMS ANY AND ALL EFFECTS THEY MAY HAVE ON CLIENT'S SOFTWARE/ HARDWARE IF INTEGRATED THEREIN OR USED THEREON. DEPENDING UPON WHERE CLIENTS ARE LOCATED, THEY MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. CLIENT ASSUMES RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE DELIVERABLES FOR ANY NEEDS AND AS COMBINED WITH OTHER SOFTWARE OR DEVELOPMENT, AND FOR RESULTS OBTAINED. LEXIMATION MAKES NO CLAIMS AND SPECIFICALLY DISCLAIMS ANY CLAIMS OR WARRANTIES WITH RESPECT TO PRIVACY, DATA LOSS, CONTENT CORRUPTION, OR PACKET LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEXIMATION SHALL NOT BE LIABLE FOR PRODUCTS LIABILITY; OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, EVEN IN THE EVENT OF THE FAILURE OF ANY EXCLUSIVE REMEDY. LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. Nothing contained in this Agreement limits Leximation's liability in the event of death or personal injury resulting from Leximation's gross negligence or for the tort of deceit (fraud).
Any warranties, indemnities, guarantees, and representations, express or implied, are specifically disclaimed, including, but not limited to, any warranty of noninfringement, merchantability, title, or fitness for a particular purpose and implied warranties arising from course of dealing or performance, except to the extent that such disclaimers are held to be legally invalid. Leximation also disclaims any warranty regarding any benefit Client might obtain from the Services, and the operation or appearance or interaction of the Deliverables with Client's website or software of any kind. While provided to the best of Leximation's ability, its consulting services, recommendations, information and Deliverables are not designed to be authoritative; Client is responsible for using any advice or Deliverables to achieve Client's intended results, and shall be fully responsible therefor. The maximum liability that can be incurred by Leximation shall not exceed the amount paid by Client on the work directly related to the issue for which Leximation is held liable.
LICENSING / OWNERSHIP OF WORK. Upon full payment of amounts due, final deliverables become the property of Client; provided, however, that Leximation retains a non-exclusive license thereto. Any templates, code, scripts or forms utilized by Leximation in accomplishing tasks under this Agreement ("Background Technology") are licensed to Client on a non-exclusive basis, for Client's internal use only as part of the final deliverables. All alternative strategies, concepts, designs, copy, etc. leading up to but not included in the final deliverables, and any canceled work, remain the property of Leximation.
APPROVALS; NON-COMPLIANCE. This Agreement may require the Parties to secure approval from each other for various activities, which the Parties agree may take place via email, extranet, or in such other mutually agreed-upon manner. All responses to requests for approval shall be made within seven (7) days of receipt by the party with the approval right and approvals shall not be unreasonably withheld. Each party shall be entitled to learn the reason for a refusal to approve, shall help suggest a solution, and will have a reasonable period to meet the objection. When a deliverable is submitted for approval and no approval or rejection is received within seven (7) days, the item shall be deemed approved. Leximation's integration of all reasonable changes suggested by Client on any deliverable shall be considered acceptance of the deliverable by Client without further submission. If all proposed changes are not acceptable or will delay further deliverables, individual deliverable items may be signed off on, on a case-by-case basis. Should any of Leximation's services or Deliverables not comply with the specifications therefor, Client must inform Leximation of the deficiency within 10 days of receipt, and Leximation shall use commercially reasonable efforts to remedy. If compliant services or Deliverables cannot be provided within a reasonable time, Client's remedy shall be to terminate this Agreement; such termination shall not affect Leximation's accrued rights to payment for Services, Deliverables or work performed prior to said termination. No breach of this Agreement by Leximation shall be deemed material if Client has not informed Leximation via written notice within ten days of learning of such breach, and giving Leximation at least ten days to remedy.
CLIENT'S WARRANTIES AND DISCLAIMER. Client warrants, represents, and unconditionally guarantees that it has sufficient rights in any and all materials it is providing to Leximation hereunder, including but not limited to any elements of text, fonts, graphics, photos, designs, trademark, artwork, music, source code, object code, or the like for Leximation to complete the Services contemplated by this Agreement, including but not limited to any necessary authorization, release, clearance or license related to any rights of ownership, privacy, publicity, or intellectual property; and it will not provide Leximation for use hereunder with any materials or ask Leximation to perform any acts that infringe any third party's intellectual property or other proprietary rights. Client hereby agrees to indemnify, defend and hold harmless Leximation, its employees, subcontractors and agents, against any damages, losses, liabilities, taxes, tariffs, settlements or expenses (including, without limitation, costs and attorneys' fees), in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the materials provided to Leximation, Client's exercise of Internet electronic commerce, or the Services. Due to conditions beyond its control, Leximation does not warrant that the operation of the Deliverables, including any portion of Client's website or software containing the Deliverables, will be uninterrupted or error-free.
GOVERNING LAW. This Agreement shall be governed by the internal laws of the State of California without regard to conflict of laws. Except for claims of infringement of Leximation's property and your payment obligations, the parties agree to arbitrate disputes in Marin County, California in accordance with JAMS rules before one arbitrator. In the event that it becomes necessary for litigation or arbitration to be initiated to enforce the terms or conditions herein, the non-prevailing party shall be responsible for all fees and other costs incurred by the prevailing party.