File & ServeXpress, LLC Agreement
BY CLICKING THE "I ACCEPT" BUTTON AT THE END OF THIS FILE & SERVEXPRESS AGREEMENT, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT. IF YOU DO NOT WISH TO ACCEPT THE TERMS SET FORTH BELOW, PLEASE CLICK ON THE BUTTON AT THE END OF THIS AGREEMENT INDICATING "I DO NOT ACCEPT."
NOTICE: FILE & SERVEXPRESS DOES NOT ENGAGE IN THE PRACTICE OF LAW, NOR IS FILE & SERVEXPRESS PART OF THE COURT SYSTEM IN WHICH YOUR LAWSUIT IS PENDING. File & ServeXpress, LLC (“FSX”), encourages all of its users who are not lawyers to consult with an attorney before using File & ServeXpress to file, serve or receive electronic and/or paper documents in a legal action.
1. DEFINITIONS. The following quoted terms not otherwise defined herein shall have the following meanings:
1.1 “Advanced Subscriber” means a Subscriber who is billed for its use of File & Serve on a monthly basis, who has the functionality within the File & Serve System as is set forth in the Section 1.9, and who is permitted to authorize Users within its organization to whom File & Serve User IDs shall be issued.
1.2 "Agreement" means this File & ServeXpress,LLC Agreement.
1.3 “Basic Subscriber” means a Subscriber that pays for use of File & Serve on a transactional basis with a credit card and who has the functionality within the File & Serve System as is set forth in the Section 1.9. A Basic Subscriber may not authorize others to use File & Serve and may not share its ID under any circumstances.
1.4 "Court" means the applicable state or federal Court or administrative agency that has entered into an agreement with FSX or an EFM to accept, send, retrieve and maintain Documents in electronic format through File & Serve.
1.5 "Courts" mean all state and federal Courts and other administrative agencies that have entered into an agreement with FSX or an EFM to accept, send, retrieve and maintain Documents in electronic format through File & Serve.
1.6 "Court Rules" means the local rules of procedure established by a Court as well as any rules promulgated by a Court governing use of File & Serve.
1.7 "Documents" mean pleadings, Court documents and other legal documents, filings, correspondence and associated data available on File & Serve.
1.8 "EFM" or “Electronic Filing Manager” means an entity that has entered into an agreement with the Courts or FSX to provide a standardized interface that accepts Documents in an electronic format for filing with a Court through File & Serve.
1.9 "File & Serve" means the File & ServeXpress service that, depending upon the type of subscription to File & Serve Subscriber has selected, permits Subscriber to: (a) file Documents with a Court in either electronic or paper form; (b) send or serve an electronic or paper copy of Documents on other parties and their lawyers; (c) perform other functions available through File & Serve; (d) receive Documents by electronic notification instead of mail or fax; and (e) access, view, print and download Documents and related Court information filed with Courts using File & Serve. If Subscriber is a File & Serve Basic Subscriber, it shall be able to perform the functions set forth in (a) – (c) above using the File & Serve. If Subscriber is a File & Serve Advanced Subscriber, it shall be able to perform all of the functions set forth in (a) – (e) above using the File & Serve. If Subscriber is a File & Serve Non-Subscriber, it shall be able to perform the functions set forth in (d) above using the File & Serve. File & Serve also permits Courts to file Documents and orders with notification to Subscribers.
1.10 "File & Serve System" means the proprietary business process component and systems component of File & Serve. The business process component includes special know-how and procedures to provide access and support to individuals who conduct electronic Transactions. The File & Serve System's components consist of the Site, databases, and computer programs that reside on hardware located at third party data centers.
1.11 "Filing Receipt" means a confirmation that is transmitted to Subscriber after it has submitted a Transaction through File & Serve to a designated Court and/or parties and their lawyers. The Filing Receipt displays the date and time the Transaction was submitted by Subscriber through File & Serve. According to Court Rules, the Filing Receipt may serve as Subscriber's proof of E-Filing.
1.12 "ID" means the identification number and password issued by FSX to Subscriber and its Users, if applicable, which ID permits access to, and use of, File & Serve. Passwords must conform to the requirements set forth on the site, which are subject to change to ensure privacy and security of data. Advanced Subscribers may request IDs for its Users at the Site.
1.13 “Non-Subscriber” means a Guest Access user that receives notification of Documents served on it by other File & Serve Subscribers and who has the functionality within the File & Serve System as is set forth in the Section 1.9. A Non-Subscriber may not authorize others to use File & Serve and may not share its ID under any circumstances.
1.14 "Online Inbox" means an Advanced Subscriber's online inbox accessible via the Site. Advanced Subscribers will receive notification that Documents that have been sent to Advanced Subscribers electronically, including incoming Service and rejected Documents via the Online Inbox.
1.15 "Paper-File via Courier" means that the materials selected for filing will not be E-Filed, but that the materials for filing will be printed out and hand-delivered by courier to the selected Court. It is the Subscriber’s obligation to ensure that all cover sheets or other items required for a paper filing are included in any materials that are Paper-Filed via Courier.
1.16 "Recipient" means and may be any of the following: (a) a Subscriber; (b) a Court; or (c) an entity or individual who is not a Subscriber.
1.17 "Site" means the FSX Internet website currently located at http://www.fileandservexpress.com (but which is subject to change upon notice to Subscriber) at which Subscriber, by entering a valid ID, may, among other things dependent upon its type of subscription to File & Serve: (a) File and Serve Documents; (b) access and view Documents E-Filed and E-Served by Subscriber or other subscribers; (c) establish and update Subscriber's Alert profile; (d) check Subscriber's Online Inbox to determine if Subscriber has received Documents or service; (e) view additional terms governing Subscriber's use of File & Serve; (f) view Court records; (g) maintain personal, firm and case account information; (h) file multiple copies of a Document through Filer Courtesy Copy; (i) view and post Messages on the Message Board; (j) view and schedule Calendared Events using the Calendaring feature; and (k) upload Documents onto the File & Serve System by fax using Upload by Fax.
1.18 "Subscriber" means: (a) if Subscriber is an individual, the person who accepts the terms of this Agreement; or (b) if Subscriber is a company or organization (an “Organization”), the Organization. If the person executing this Agreement is executing it on behalf of an Organization, such person represents and warrants that he or she is duly authorized to enter into this Agreement on behalf of the Organization. A Subscriber may be an Advanced Subscriber or a Basic Subscriber based upon the type of subscription to File & Serve the Subscriber has selected. Advanced and Basic Subscribers are collectively referred to as Subscribers.
1.19 "Transaction" means the record that is created by File & Serve with respect to a sent, E-Filed or E-Served Document, or Courier Courtesy Copy Delivery, including the Document(s), Court name, name of case matter, and name of filing party attorney and firm and other associated information.
1.20 "User" means those employees, independent contractors, and agents of an Advanced Subscriber authorized by the Advanced Subscriber to use File & Serve. Advanced Subscribers will be responsible for any and all use of File & Serve and for all charges incurred by your Users.
1.21 Terms as defined in this Section 1 and elsewhere, parenthetically, shall have the same meaning throughout this Agreement.
2.1 This Agreement is made between FSX and Subscriber.
2.2 By subscribing to File & ServeXpress (“File & Serve”), Subscriber will be permitted to use File & Serve to E-File, E-Serve, Paper-File via Courier and effectuate Courier Courtesy Copy Delivery to the applicable Courts. In exchange for access to File & Serve, Subscriber agrees to the terms of this Agreement and to pay all applicable fees associated with use of File & Serve as more specifically set forth in Section 4.
2.3 Subscriber shall be subject to the terms of this Agreement. If Subscriber is a File & Serve Advanced Subscriber, it shall have the right to authorize Users to use File & Serve on its behalf. By using File & Serve, all Users accept the terms of this Agreement. FSX has the right to notify each User of the terms of the Agreement.
3. LICENSE TO USE FILE & SERVE; FILE & SERVE FEATURES AND LIMITATIONS
3.1 FSX hereby grants Subscriber a non-exclusive, non-transferable, limited, terminable license to use File & Serve, subject to the terms and conditions set forth in this Agreement, any additional terms and conditions posted on the Site, the Court Rules and any applicable state and federal laws.
3.2 The information accessible through File & Serve shall be for Subscriber’s own internal use in the ordinary course of its business. Subscriber may share the results of individual record and Document searches with clients or customers. Subscriber will not provide any third party (including its clients or customers) any right of access to File & Serve, provide any on-going services to third parties through or using File & Serve, whether as a service bureau or otherwise, or provide any records or data in any form to a third party for provision to others. Subscriber acknowledges that any violation of these provisions would cause serious injury to FSX and Subscriber hereby grants to FSX any and all right, title and interest to all records or data transferred in violation of these provisions.
3.3 File & Serve shall not be used in a manner contrary to or in violation of any applicable federal, state, or local law, rule, or regulation, including without limitation, the Fair Credit Reporting Act (15 U.S.C.A.1681 et seq., "FCRA"). Subscriber certifies that neither Subscriber nor any of its Users will use any information obtained from File & Serve as a factor in establishing a consumer's eligibility for credit or insurance to be used primarily for personal, family, or household purposes, for employment purposes, for residential tenant screening, for governmental licenses, or for other uses which are covered by the FCRA.
3.4 File & Serve includes many features including, but not limited to, E-Filing, E-Service, Paper-File by Courier, Alerts, Courtesy Copy, Courtesy Notification, Message Board, Calendaring, Upload by Fax, and other features that allow Subscriber information maintenance and billing information maintenance as more fully described in Section 3.5 below. File & Serve features are available for use by Subscriber for a specified fee. Subscriber can view the applicable fees at http://www.fileandservexpress.com (but which is subject to change upon notice to Subscriber). Features may be added to or withdrawn from File & Serve without notice in accordance with Section 6.1.
3.5 The following is a description of the features of File & Serve that are available to all File & Serve subscribers and the limitations of such features:
(a) "Data Entry" is a feature that allows Subscriber to enter case information and delivery information for fax and/or U.S. mail methods of service. Subscriber is solely responsible for providing accurate fax or address information. FSX does not edit or update information if a Transaction cannot be completed because the information provided by Subscriber is inaccurate;
(b) “E-File” or “E-Filing” is a feature that allows Subscribers to electronically submit Documents through File & Serve to Courts that have approved the use of File & Serve in their Court Rules. Documents must be in a file type supported by File & Serve to be eligible for E-Filing, and File & Serve is not responsible for Documents in file types not supported by File & Serve. Subscriber, and not File & Serve, is responsible for loading and transmitting Documents correctly and in a timely fashion and for confirming, through File & Serve, the Documents have been accurately converted, uploaded and accepted for E-Filing by the Court;
(c) "E-Serve," "E-Serving," or "E-Service" means the official service of Documents on parties to a lawsuit and/or their attorneys by submitting the Documents electronically through File & Serve (excluding service of process). The term “E-Service” pertains only to subsequent pleadings filed in a litigation matter, not the initial Complaint. The ability to E-Serve Documents on other parties and their lawyers is determined by Court Rules, Case Management Order, Stipulation Order signed by the attorneys, or other agreement between the attorneys in a case. Documents must be in a file type supported by File & Serve to be eligible for E-Service, and File & Serve is not responsible for Documents in file types not supported by File & Serve. Subscriber, and not File & Serve, is responsible for loading and transmitting Documents correctly and in a timely fashion and for confirming, through File & Serve, the Documents have been accurately converted and uploaded. It is also Subscriber’s sole responsibility to determine when a Document can or must be E-Served as opposed to service in paper or E–Filed or conventionally filed with a Court; and
(d) "Paper-File via Courier" is a feature that allows Subscribers to submit Documents to File & Serve, which Documents will be printed out and taken by a courier for in-person filing at the selected Court. Paper-File via Courier is intended for use in situations where E-Filing is not available. Subscriber is solely responsible for loading and transmitting Documents correctly and in a timely fashion and for confirming that all Documents necessary for the filing to be accepted (including without limitation any court required cover sheets) are included. File & Serve is not responsible for the acceptance of any Documents Paper-Filed via Courier with any Court;
(e) "Serve Only" is a feature that permits Subscriber to E-Serve and/or serve in paper a Document only upon a designated firm through File & Serve and not E-File or conventionally file the Document with the Court.
3.6 The following is a description of the features of File & Serve that are available to Advanced Subscribers only and the limitations of such features:
(a) "Alert" is a feature that notifies Advanced Subscriber a Document it has E-Filed has been accepted for E-Filing or that the Advanced Subscriber has had a Document E-Served upon it. Notwithstanding the foregoing, the Alert feature will only notify an Advanced Subscriber that a Document has been E-Served upon it or accepted for E-Filing if the Document meets the criteria established by the Advanced Subscriber in its Alert profile at the time the Document is Served or accepted for E-Filing through File & Serve. An Alert profile contains the search criteria entered by the Advanced Subscriber at the time it registered to receive Alerts. Advanced Subscribers are solely responsible for ensuring that all Alert profile information is accurate and up-to-date. The Alert feature will not retroactively notify an Advanced Subscriber of a Document that was E-Filed or E-Served before its Alert profile was created. In addition, the Alert feature WILL NOT notify an Advanced Subscriber that a Document has been accepted for E-Filing with a Court if: (i) the Document is E-Filed or E-Served in paper format, or (ii) the Court retroactively uploads to File & Serve a previously filed Document. Furthermore, the Alert feature will not allow an Advanced Subscriber to view sealed Documents or Serve-Only Documents, unless the sealed or Serve-Only Documents are Served upon the Advanced Subscriber. An Alert is not immediate and may take up to, or exceed 24 hours to process. Further, the Alert feature is provided as a convenience only. Advanced Subscribers who use the Alert feature shall not rely solely on Alert to determine if a Document has been E-Served or E-Filed;
(b) “Calendaring” is a feature that allows Advanced Subscribers and other Participating Parties to view and schedule key events in connection with a case on an online calendar located on the Site (a “Calendared Event”). A Calendared Event may be viewable by all Participating Parties. Calendaring is provided as a convenience to Advanced Subscribers and is provided “As Is.” FSX does not determine or validate the accuracy of Calendared Events, nor does FSX guarantee that Calendared Events will be posted in a timely fashion;
(c) “Court Courtesy Copy” is a feature that gives Advanced Subscribers the ability to provide multiple paper copies of a Document upon request of a Court when the number of copies requested by the Court is undetermined at the time of E-Filing. Using the Court Courtesy Copy feature, Court staff will have the ability to request the requisite number of copies of the E-Filing that are needed through File & Serve. No additional action on the part of the Advanced Subscriber is necessary. Fees incurred for copies provided to the Court are added to, and will appear in the Advanced Subscriber’s monthly invoice;
(d) "Courtesy Notification" is a feature that allows Advanced Subscribers to provide an informal notice to a case party that it has E-Filed a Document on File & Serve. The sending of Courtesy Notification MAY OR MAY NOT comply with Court Rules for service. Advanced Subscribers that use this feature are solely responsible for determining when a Document must be E-Served as opposed to sending a Courtesy Notification that a Document has been E-Filed. The Recipient of a Courtesy Notification will receive an email notification that the Document has been E-Filed on File & Serve with a link to the Document and the Recipient must pay to view, print or download the Document for which it received the Courtesy Notification;
(e) “Document Reassignment” is a feature that allows Advanced Subscribers to better navigate and retrieve Documents on the File & Serve System. Upon the request of Advanced Subscribers, FSX will review and move Documents inappropriately served in a master case to their respective individual case(s) on the FSX website. FSX will also standardize all document titles contained within a profile and other documents and review for proper punctuation. Fees and specific terms for Document Reassignment will be provided in separate “Amendments” entered into and executed by Subscriber and FSX (See Section 4.1(a)). Fees incurred for Document Reassignment services provided are added to, and will appear in the Advanced Subscriber’s monthly invoice.
(f) "Email Notification" is a feature that allows an Advanced Subscriber to receive an email notification that a Document has been E-Served upon it and is available for viewing in the Advanced Subscriber’s Online Inbox at the personal email address provided to FSX by the Advanced Subscriber. The Email Notification feature does not constitute service on the Advanced Subscriber and is provided by FSX solely as a convenience. It is the responsibility of the Advanced Subscriber that uses the Email Notification feature to check its Online Inbox to view E-Filed and E-Served Documents. The Email Notification feature will not function properly if the Advanced Subscriber’s email information is inaccurate or if the Advanced Subscriber's email account has been set up to reject email over a certain size or based upon its security settings. Advanced Subscribers that use the Email Notification feature are solely responsible for providing accurate, up-to-date email addresses and for ensuring that email accounts are set up properly to receive Email Notifications;
(g) “Filer Courtesy Copy” is a feature that provides Advanced Subscribers the ability to provide paper copies of any Document that has been E-Filed or E-Served through File & Serve, to a Court. The Advanced Subscriber is responsible for determining when Filer Courtesy Copies are required and the number of Filer Courtesy Copies that are required by a Court. Advanced Subscribers’ Fees incurred for copies provided to the Court are added to, and will appear in the Advanced Subscriber’s monthly invoice;
(h) “Message Board” is a feature that allows Advanced Subscribers and the other parties, lawyers and the Court in a case (collectively the “Participating Parties”) to view and post messages on an informal community board that is maintained on the Site. An example of an item that may be posted to the Message Board is the time a deposition is scheduled (a “Message”). Any Message posted to the Message Board shall be viewable by all Participating Parties and should be of general interest to all Participating Parties. The Message Board should not be used as a request for customer service. The Message Board is provided as a convenience to Advanced Subscribers and is provided “As Is.” FSX does not guarantee that Messages will be posted to the Message Board in a timely fashion, nor does review or monitor the content of Messages. As such, FSX disclaims any and all liability with respect to the content of displayed Messages. FSX reserves the right to withdraw Messages from the Message Board in the event it becomes aware that inappropriate material has been posted to the Message Board;
(i) "Service Transaction" is a feature that permits Advanced Subscribers to designate service as "Serve Only", "Serve Only-Private", or "Serve Only-Public" which terms shall have the following meanings: (i) "Serve Only" has the meaning set forth in Section 3.5(d) above; (ii) "Serve Only-Private" means only the sending firm and designated Recipient will have access to view the documents and related Transaction data; and (iii) "Serve Only-Public" shall mean that the Transaction may be accessible and viewable by all File & Serve Subscribers. Dependent upon applicable Court Orders, independent agreements and the local Court Rules of the Court in which the case is pending FSX may allow File & Serve Subscribers to download or view “Serve Only-Public” Documents for a fee as set forth on the Site; and
(j) “Upload by Fax” is a feature that allows Advanced Subscribers to fax a Document to FSX that will be electronically uploaded onto the File & Serve System and available for Advanced Subscribers to complete electronic E-Filing or E-Service through the File & Serve System. The Advanced Subscriber shall fax the Document to FSX using a Fax Cover Sheet. FSX provides Upload by Fax as a convenience to Advanced Subscribers. Although FSX will make every effort to upload Documents in timely manner, FSX is unable to guarantee that Documents will be uploaded in a timely manner. FSX is not responsible for errors or delays in transmission that are beyond its control. Advanced Subscribers that use this Upload by Fax feature are sole responsibility for confirming that FSX is in receipt of Documents transmitted to FSX via Upload by Fax and that such Documents have been uploaded accurately;
4. CHARGES; BILLING
4.1 The use of File & Serve by Subscribers will result in the accrual of "Usage Fees," "Court Fees" (in some jurisdictions) and “Service Fees.”
(a) Usage Fees are those fees imposed by FSX for use of File & Serve and may vary based upon a number of factors including the State, Court, Case Type, Case Class, and features being used. Subscriber may view the Usage Fees by logging onto the Site and selecting pricing information. Usage Fees will be set forth on a project specific basis and are subject to change from time to time. Subscriber will check the Site for the amount of Usage Fees and for any changes to the Usage Fees. Subscriber is solely responsible for all Usage Fees incurred for the use of File & Serve by its Users. All Usage Fees are exclusive of taxes and, if applicable, taxes will be added to Subscriber's invoice and are payable by Subscriber. Subscriber is responsible for providing a sales tax exemption certificates to avoid such taxes. Usage Fees apply even if a document is rejected by a Court: FSX will not provide a refund. Notwithstanding the foregoing, FSX and Subscriber may enter into a pricing amendment to this Agreement (an “Amendment”) with respect to the amount of Usage Fees.
(b) Court Fees are the fees, charges, taxes and the like, due to a Court or other governmental entity for Documents tendered for filing, posting through File & Serve, or accessed by Subscriber through File & Serve in instances where FSX has agreed to collect such fees on behalf of the Subscriber, Court or governmental entity. FSX MAY COLLECT AND REMIT COURT FEES AS PART OF FILE & SERVE IN SOME JURISDICTIONS. HOWEVER, SUBSCRIBER IS SOLELY RESPONSIBLE FOR THE PAYMENT OF COURT FEES. FSX MAY ALSO ASSESS AN ADMINISTRATIVE FEE FOR THE ADVANCEMENT OF COURT FEES.
c) Service Fees are the fees charged by FSX for FSX to pay third party fees on behalf of any Subscriber. Certain websites and electronic portals accessed by a Subscriber will permit such Subscriber to have the fees and other charges charged by the owner or operator of such website or portal paid by FSX If FSX pays any such fee or charge, FSX will charge the Subscriber (i) the amount of such fee or charge and (ii) a Service Fee in the amount of 5% of such fee or charge. Service Fees apply even in the event of any dispute with the third party website or electronic portal concerning the underlying fee or charge. If FSX receives a refund of such underlying fee or charge, FSX will credit the File & Serve Illinois Subscriber’s account for such underlying fee or charge amount, but FSX will not provide a refund of any Service Fee imposed on such underlying fee or charge. FSX may, from time to time change the amount of the Service Fee.
4.2 At FSX’s discretion, in addition to Usage Fees, Court Fees and Service Fees, FSX may assess File & Serve Subscribers a reasonable administrative fee for the (i) processing of the statutory Court Fees and (ii) processing and/or conversion of Court case service/notice lists that are provided by Subscribers to FSX in a format other than an Excel spreadsheet or Flat File Text format. In addition, FSX shall assess File & Serve Subscribers a reasonable maintenance fee for the general upkeep of the case service/notice lists.
4.3 Basic Subscribers will pay FSX the applicable Usage Fees, Court Fees and Service for use of File & Serve via a credit card. Applicable fees will be posted on the Site from time to time by FSX. If Subscriber's credit card charge is not approved, the Transaction will not be processed.
4.4 Advanced Subscribers will pay FSX the applicable Usage Fees, Court Fees and Service Fees for use of File & Serve. Applicable fees will be posted on the Site from time to time by FSX or as agreed to by the parties in an Amendment. Advanced Subscribers will be invoiced on a monthly basis, either via a hard copy or an electronic invoice. FSX will automatically send you a hard copy invoice unless you choose to receive an electronic invoice. Advanced Subscribers choosing to receive an electronic invoice will not be charged an additional fee for such electronic invoice. However, Advanced Subscribers choosing to receive a hard copy invoice will be charged a minimal fee. The invoice will set forth a reasonably detailed list of the Usage Fees and, if applicable, Court Fees or Service Fees incurred. At FSX’s discretion, in addition to Usage Fees, Court Fees and Service Fees, FSX may assess reasonable administrative fees upon Advanced Subscribers who pay monthly invoices through multiple (in excess of five) checks or payments. Subscribers are ultimately and fully responsible for payment to FSX of all fees, charges and other amounts (including, without limitation, any statutory filing, other Court fees or administrative fees), incurred through its User’s IDs. The duty to pay any and all fees incurred for use of File & Serve is responsibility of the Advanced Subscriber and shall not be delegated to any third party(s) without prior authorization from FSX.
4.5 Advanced Subscribers shall pay each invoice within ten (10) days after either Subscriber’s receipt of invoice or the date the invoice is made available to Subscriber, whichever is sooner. Any amounts not paid within thirty (30) days after the invoice date will bear interest at a rate equal to the lower of (a) eighteen percent (18%) per annum or (b) the highest rate per annum allowed by applicable law. In addition to the above finance charges, Court Fees not paid within thirty (30) days after the invoice date will bear an administrative fee of up to twenty percent (20%) per month of the outstanding statutory Court Fee. All finance charges will be determined and compounded daily from the date due until the date paid. Payment of such finance charges will not excuse or cure Subscriber of breach or default for late payment. Advanced Subscribers will reimburse any costs or expenses (including, but not limited to, reasonable attorney’s fees) incurred by FSX to collect any amounts which are not paid when due or for any other failure to honor your payment obligations under this Agreement. Additionally, FSX may terminate the Advanced Subscriber's access (and access by all its Users) to File & Serve in accordance with Section 7 for any delinquent account and report such Advanced Subscriber’s failure to pay FSX to the applicable Court and attorney licensing authority for the state.
5. SUBSCRIBER'S RESPONSIBILITIES
5.1 Subscriber is solely responsible for: (a) Subscriber's software and equipment, including computer and communications devices; (b) ensuring Subscriber's software and hardware are suitable for connecting to the Site and using File & Serve, including having the minimum system and software required by FSX to use File & Serve (which information is located on the Site); and (c) Subscriber's access to the Internet, Subscriber's connectivity to the Site, Subscriber's relationship with its Internet service provider, and any telephone or other connection and service fees associated with such access.
5.2 Advanced Subscribers are solely responsible for training and monitoring their Users. Advanced Subscriber's authorization of a User to obtain an ID is also an authorization of that User to incur charges such as Court Fees and File & Serve Usage Fees (as such terms are defined in Section 4.1 above). Advanced Subscribers shall be solely responsible for all fees incurred by their Users.
5.3 Subscriber is solely responsible for maintaining the security and confidentiality of all IDs/passwords. Subscriber will promptly notify FSX if an ID/password is lost, stolen, no longer valid, has been misused, or compromised in any manner. FSX will promptly cancel such ID/password. FSX shall have no liability to Subscribers, Users, or any third party (including, without limitation, Subscriber's clients or customers, if any) for any claim based upon misuse of an ID/password. Subscribers are solely responsible to control all ID/password appropriately assigned by FSX. FSX may immediately suspend access to File & Serve if it suspects unauthorized use of an ID/password or in the event of an activity that might compromise File & Serve. Each ID/password issued will be used solely by the individual for whom it was issued and will not be shared under any circumstances.
5.4 Subscriber is solely responsible for maintaining and updating ID/passwords used to access File & Serve in accordance with applicable requirements set forth on the Site. ID/password protocol is subject to change to ensure privacy and data protection. Subscribers and Users that do not follow password protocol may be unable to access the File & Serve System.
5.5 Subscriber is solely responsible for the continuing accuracy of any and all information provided by Subscriber to FSX in connection with the electronic transmission or delivery of any Document. Subscriber must notify FSX of any change in Subscriber's contact information including, but not limited to, the change of address, legal name, facsimile number(s), email address, withdrawal of one or more Users from Subscriber's organization, withdrawal by Subscriber as counsel of record from any matter pending before a Court, or any other material information known by Subscriber that is part of Subscriber’s contact information. FAILURE TO NOTIFY FSX OF ANY CHANGE IN SUBSCRIBERS OR USER’S INFORMATION, IF APPLICABLE, MAY RESULT IN INCOMPLETE DELIVERY OF SERVICE DOCUMENTS UPON THEM, OR FAILURE TO RECEIVE SERVICE OF LEGAL DOCUMENTS.
5.6 Advanced Subscribers are solely responsible for checking the Site to determine if notification of Service has been provided, or that a Document it attempted to E-File has been rejected by a Court. ADVANCED SUBSCRIBERS ARE SOLELY RESPONSIBLE FOR MONITORING FILE & SERVE, INCLUDING BUT NOT LIMITED TO, ONLINE INBOXS AND EMAIL NOTIFICATIONS. FURTHER, IT IS THE SOLE RESPONSIBILITY OF ADVANCED SUBSCRIBERS TO DETERMINE IF A DOCUMENT MUST BE SERVED AS OPPOSED TO SIMPLY FILED.
5.7 ADVANCED SUBSCRIBERS ARE SOLELY RESPONSIBLE FOR CHECKING THE SITE TO DETERMINE PROPER ASSOCIATION WITH THE APPROPRIATE CASE(S) AND PLACEMENT ON THE CORRESPONDING SERVICE LIST(S). FSX IS NOT RESPONSIBLE FOR THE ACCURACY OR CONTENT OF CASE SERVICE LISTS POSTED ON THE SITE. When requesting to be associated with a particular case(s), Advanced Subscribers and any/all Users assert and warrant they are entitled to be associated with and receive service of Documents in said case(s).
5.8 Subscriber is responsible for checking the Site for changes to the terms of this Agreement and with the Courts periodically for changes in the Court Rules. FSX IS NOT RESPONSIBLE FOR CHANGES TO COURT RULES OR FOR NOTIFYING SUBSCRIBER OF SUCH CHANGES.
5.9 Subscriber shall notify FSX immediately if an E-Filed Document is subsequently sealed by a Court and shall provide details in connection with such sealing which enable FSX to determine the action which should be taken in connection with the E-Filed Document at issue (e.g., removal from public access in File & Serve).
6. MODIFICATION OF TERMS AND FILE & SERVE
6.1 FSX may modify or change this Agreement from time to time (including the amounts of Usage Fees, as defined in Section 4.1 above), at its sole discretion. FSX will notify Subscriber of any material change(s) in this Agreement and Usage Fees pertaining to E-File-Only Transactions, E-Serve-Only Transactions and E-File and E-Serve Transactions, by posting the proposed change(s) on the Site for five days prior to the effective date of such change(s). FSX also reserves the right to modify or discontinue features and capabilities of File & Serve, or any portion of File & Serve, without advance notice for normal maintenance and enhancements, and to modify or update the File & Serve System documentation located on the Site. Usage Fees pertaining to enhanced and/or new features will be effective immediately upon release of such features.
6.2 The continued use of File & Serve by Subscriber or its Users, if applicable, after such notice will constitute acceptance of the change. If Subscriber objects to such modifications, Subscriber's sole recourse will be (a) discontinuance of Subscriber's use of File & Serve, or (b) through the Court.
7.1 Subscriber may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to FSX. Upon termination by Subscriber, any and/or all obligations and duties owed by FSX to Subscriber, if any, will end. FSX may provide post-termination assistance to Subscriber and may assess upon Subscriber reasonable administrative fees and costs associated with such assistance.
7.2 FSX may terminate this Agreement, without cause, upon 30 days written notice to Subscriber. Additionally, in the event that Subscriber breaches any material term of the Agreement (including Court Rules), FSX may terminate this Agreement immediately, if Subscriber has not cured such breach within five days after FSX gives Subscriber written notice of such breach. Material breach includes (but is not limited to) any misuse of File & Serve, Subscriber's insolvency, or any failure to make payments to FSX. FSX may also terminate a Subscriber’s account after an account remains inactive for six months. Users of a terminated Subscriber account will lose all access to the File & Serve System and will no longer have the ability to submit filings to the Court, serve documents through the File & Serve System or utilize any other features of File & Serve. A Subscriber may re-activate a terminated account by going through the online registration process at www.fileandservexpress.com or by contacting FSX Customer Support.
7.3 Upon termination of this Agreement, neither Subscriber nor its Users will have the ability to use File & Serve.
7.4 Subscriber is responsible for notifying a Court and other Subscribers to File & Serve of the termination of Subscriber's access to File & Serve.
8.1 FSX warrants that File & Serve is capable of performing the functions in conformance with the published File & Serve System documentation located on the Site for the then-current version of the File & Serve System, under normal use and as long as Subscriber is in compliance with its obligations under this Agreement. Subscriber's sole relief for breach of the foregoing warranty is that FSX (in its sole discretion) will either, (a) redeliver or re-perform the File & Serve feature or function without charge, or (b) refund to Subscriber the fee paid by Subscriber for the File & Serve feature or function that is the subject of the warranty claim.
8.2 The Internet is a not an error-free environment and some forms of electronic filings need substantial lead time and reasonable computer skills to prepare and transmit in a timely fashion. FILE & SERVE IS SUBJECT TO LIMITATIONS, DELAYS AND PROBLEMS INHERENT WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS. NEITHER FSX NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS WARRANT THAT FILE & SERVE WILL MEET SUBSCRIBER'S REQUIREMENTS, OR THAT FILE & SERVE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. NEITHER FSX NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION IN RECORDS AVAILABLE ON FILE & SERVE, OR WARRANT THAT ANY PLEADINGS, MAIL OR OTHER DOCUMENTS WILL BE RECEIVED AND READ BY THEIR INTENDED RECIPIENTS. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8.1, NEITHER FSX NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS PROVIDES ANY WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL SUCH WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FILE & SERVE IS PROVIDED "AS IS WITH ALL FAULTS" AND ON AN "AS AVAILABLE" BASIS.
8.3 Subscriber represents and warrants that it will not provide FSX with any Protected Health Information (as that term is defined in 45 C.F.R. Sec. 160.103) or with Electronic Health Records or Patient Health Records (as those terms are defined in 42 U.S.C. Sec. 17921(5), and 42 U.S.C. Sec. 17921(11), respectively) or with information from such records without the execution of a separate agreement between the parties.
9. LIMITATIONS OF LIABILITY
9.1 FSX has no control over the content of a Document transmitted on or through File & Serve, and FSX has no liability to Subscriber, Users, Subscriber's clients, or other third parties for any claim based upon (a) rejection of a Document by a Court or an EFM, (b) alleged defamation, libel, or slander contained in the Documents, (c) infringement of any intellectual property rights in a Document, and (d) the content and format of a Document. FSX has no liability to Subscriber, Users, Subscriber's, clients, customers, or other third parties based upon incorrect transmission or delivery instructions by Subscriber or other subscribers to File & Serve, including, without limitation, liability for any losses in connection with the loss of privilege or for any other claimed injury or damages due to disclosure of a Document.
9.2 NEITHER FSX NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS WILL BE RESPONSIBLE FOR, AND SUBSCRIBER WILL NOT SEEK TO HOLD FSX OR ANY SUCH PARTY RESPONSIBLE FOR ANY LOSS, INJURY, CLAIM, LIABILTY OR DAMAGE OF ANY KIND RESULTING FROM: (a) any errors in or omissions from File & Serve; (b) any delays or delivery problems resulting from use of File & Serve; (c) the unavailability or interruption of File & Serve or any of its features; (d) your use of File & Serve (regardless of whether Subscriber received assistance, information or advice from the Site or any FSX personnel); (e) transmission errors or any problems relating to telephone lines or other transmission devices, including the unavailability of telephone lines or other electronic transmission lines or devices; (f) any alteration or destruction of a Document resulting from third parties' unauthorized access to or use of File & Serve (e.g., computer "hackers"); or (g) any losses or damages or alteration or destruction of a Document or information on any party's computer system or elsewhere resulting from the transmission of computer "viruses" or other damaging or destructive software or software components by or through File & Serve, except in the case of willful or reckless acts on the part of FSX.
9.3 IN NO EVENT WILL FSX OR ANY OF ITS SUPPLIERS, LICENSORS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF REVENUES, PROFITS, DATA OR OTHER INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER'S EXCLUSIVE REMEDY, AND THE MAXIMUM LIABILITY OF FSX AND SUCH OTHER PARTIES, IF ANY, FOR ANY DAMAGES, WHETHER BASED IN CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE, SHALL BE STRICTLY LIMITED TO THE AMOUNT OF THE USAGE FEE SUBSCRIBER ACTUALLY PAID TO FSX FOR THE PARTICULAR TRANSACTIONAL USE OF FILE & SERVE WHICH CAUSED THE DAMAGES, EXCLUSIVE OF COURT FEES. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIONS OF WARRANTY AND DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
9.4 In jurisdictions where File & Serve is not required, File & Serve, Subscriber is provided as a convenience service, and Subscriber can make alternative arrangements to file and serve Documents. Subscriber acknowledges that the timely E-Filing or E-Serving, in compliance with statutes, regulations, Court Rules, and orders requires the professional judgment of an attorney, and that attorneys appearing in a case are ultimately responsible for the timely E-Filing, E-Serving, or Service of Process of any such Documents (as specified by User). While FSX will use reasonable efforts to electronically E-File or E-Serve, neither FSX, nor any of its licensors, suppliers or contractors shall have any liability whatsoever associated with the E-Filing, E-Serving or failure to E-File, E-Serve submitted via File & Serve. Subscribers seeking to file documents with Courts located in San Francisco, California should be aware that Documents and communications submitted to FSX for filing or E-Service may be passed to the San Francisco Case Management System and shared with other E-Filing vendors and Courts in connection with the validation of E-Service. Such Subscribers should be aware that they may be served with matters relevant to cases in the San Francisco Courts in such Subscribers’ FSX inbox or email address. It is the duty of each Subscriber, and not of FSX, to monitor their FSX inbox or personal email address provided to FSX for any service-related matter, and the failure to do so may adversely prejudice such Subscriber or otherwise harm their legal rights.
9.5 The parties will use reasonable efforts to take precautions against the contamination of their respective systems and computer files with software viruses, worms or other malicious agents that may reside within messages sent through File & Serve. At a minimum, such precautions shall include the installation, upgrading and use of commercial virus detection software to scan files and Documents transmitted via File & Serve. Additionally, the parties will use reasonable efforts to identify and to correct or remove any Document or file that may have infected data or contain viruses or other malicious agents. FSX reserves the right to delete infected Documents, files or programs, and FSX shall have no liability to Subscriber, or the sender or intended Recipient of infected materials for such action. However, no precautions or virus detection software is or can be effective against all viruses, and FSX shall have no liability with regard to any contamination of files, Documents or File & Serve.
9.6 In jurisdictions where FSX is not participating as an EFM, in no event will FSX or any of its suppliers, licensors or other contractors be responsible or liable for: (a) any problems relating to delivery or delay of Documents filed with the Court resulting from the EFM; or (b) the unavailability or interruption of EFM service.
9.7 No claim, regardless of form, which in any way arises out of or relates to File & Serve or Subscriber's use of or inability to use File & Serve, or the use of or inability to use Documents accessed through File & Serve, may be brought by Subscriber more than one year after the basis for the claim is discovered or should have been discovered by Subscriber.
9.8 Each third party supplier, licensor or contractor of FSX has the right to assert and enforce the provisions of Sections 8 and 9 of this Agreement on its own behalf as a third party beneficiary.
10.1 FSX, at its expense and option will defend and hold Subscriber harmless from or settle any claim, cause of action or demand made by any third party against Subscriber that File & Serve or the File & Serve System infringes any intellectual property of any third party; provided, that (a) Subscriber promptly notifies FSX of the claim in writing; (b) use of File & Serve was in substantial compliance with this Agreement, (c) the infringement was not caused in whole or in part by Subscriber; (d) FSX shall have sole control over the investigation, defense and settlement of the claim; (e) Subscriber shall provide such assistance in the defense of the claim as FSX may reasonably request; and (f) Subscriber shall comply with any settlement or Court order made in connection with the claim.
10.2 Subscriber agrees to defend, indemnify and hold harmless FSX (including its affiliates, officers, directors and employees) from any claim or demand, including reasonable attorneys' fees, made by any third party that File & Serve or the File & Serve System infringes any intellectual property of any third party based upon use of File & Serve or the File & Serve System not in compliance with this Agreement by Subscriber. The foregoing shall not apply to a Subscriber that is a public entity if prohibited by applicable law.
11. THIRD-PARTY SOFTWARE
File & Serve may utilize software from third-party providers ("Third Party Software"). Third Party Software can include sign-on and identification facilities, document transfer and conversion tools and the facilities needed to acknowledge, time stamp and forward documents, associated data and notifications to and from the Court as well as to other users of File & Serve. Subscriber shall comply with the license terms of any Third Party Software supplied in connection with File & Serve and that it will not or allow others to alter or modify any Third Party Software without express written permission from FSX or the Third Party Software provider in each instance. FSX has no obligation to maintain or upgrade any such Third Party Software.
12. PILOT PROJECTS
FSX may implement File & Serve in various jurisdictions in conjunction with local Courts and bar representatives through a process of needs assessments, pilot efforts and phased stages to accommodate unique requirements of multiple subscribers. In such cases, Subscriber will cooperate with limited and reasonable testing, provide timely responses to reasonable requests for information or approvals, and promptly report any error condition or anomaly to FSX.
13. FORCE MAJEURE
Neither party shall be in breach of this Agreement in the event it is unable to perform its obligations under this Agreement as a result of interruption and delay due to causes beyond its reasonable control including, but not limited to, acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, failure of equipment not under the control of either party, transmission line or communications failure or unavailability, industrial or labor dispute, inability to obtain necessary supplies and the like.
14. MISCELLANEOUS PROVISIONS
This Agreement (including the Court Rules and any applicable state or federal laws) embodies the entire understanding between the parties with respect to the subject matter hereof and supersedes any and all prior understandings and agreements, oral or written. This Agreement is governed by and construed under the laws of the State of Texas, without reference to its conflicts of law rules to the contrary. Neither this Agreement nor any part or portion of it shall be assigned, sublicensed or otherwise transferred (by merger, operation of law or in any other manner) by Subscriber without FSX’s prior written consent. All notices required or permitted in this Agreement shall be in writing and shall be emailed, mailed, faxed, posted on the Site or delivered to the account representative of the other party at the last address provided to the other party in writing. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal, the validity and enforceability of the other provisions shall not be affected. In addition, the parties will endeavor to replace the provision with a legal, valid or enforceable one that most closely embodies the original intentions of the parties. Failure of any party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only.