Digitization Services Agreement

Version Date: December 4, 2007

This Agreement will govern the provision of Services from Lexbe to You related to digitization, as provided herein.  Placing an Order for Services, or otherwise utilizing Lexbe's Services, indicates your consent to the terms of this Agreement, effective as of the Effective Date.

1. Definitions. As used in this Agreement and in any Order Forms, the following terms will have the following meanings.
"Affiliate(s)” means any entity controlling, controlled by, or under common control with the party. Control means ownership of more than 50% of the voting, equity securities of the subject entity.
"Agreement" means this Digitization Services Agreement, any Order Forms, whether written or submitted online, and any materials available on the Lexbe website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Lexbe from time to time in its sole discretion.
"Customer" and "You"  each refers to the persons and entities placing an Order for the Services or using the Services, including without limitation the person or entity identified as 'customer' or 'client' on an Order Form or related materials. If You use or order the Services on behalf of a company or other organization, as an employee or agent, then 'Customer' and 'You' refers to such company or organization as well.
"Customer Materials" means the Source Materials and the Digitized Materials.
"Digitization Services" means the Lexbe's services identified during the ordering process, provided by Lexbe, which may include without limitation: scanning electronic images from paper copy, performing conversion between electronic file formats, performing OCR, coding, identifying documents separation points, manipulating files, converting email files between file formats (e.g., PST, OST, EML, MSG), filtering or culling email by date, keyword or other criteria,  and performing related digitization related services.
"Digitized Materials" means electronic files created by Lexbe from the Source Materials, as part of the Digitization Services.
"Effective Date" means the earlier of either the date You submit an Order, or when Lexbe begins providing the Services to You at Your request.  
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
"Lexbe" means Lexbe LC, a Texas limited liability company, 3801 N. Capital of TX Hwy, Suite E420/152, Austin, TX 78746.
"Lexbe Technology" means all of Lexbe's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Lexbe in providing the Service.
"Order" or "Order Form(s)" means the form evidencing the initial submission for the Digitization Services and any subsequent order forms submitted online in the form provided by Lexbe, or in other written form or agreement if signed by Customer and an officer of Lexbe, specifying, among other things, the specific Digitization Services or Other Services requested,  each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
"OCR" means 'optical character recognition' which is the process of process of taking scanned images (from documents) and electronically converting them into editable text. The output may be a text files (flat ASCII files), or it may be embedded in a more complex file, such as a searchable PDF.
"Other Services" means service activities requested of Lexbe by you outside of standard Digitization Services as described in an Order Form, or services requested or required in connection with a Proceeding involving You, or in connection with a subpoena served on Lexbe related to a Proceeding involving You, which services may include without limitation evidence recovery, data recovery, media or data transfer, time spent preparing for and participating in depositions, travel, expert witness services, or other litigation matters within Lexbe's expertise.
“Proceeding” means a lawsuit, arbitration, mediation, administrative proceeding in a court of law or before an administrative body or arbitration or mediation organization, in which a legal remedy or outcome is sought.
“Source Materials" means paper-based documents or electronic files provided by You to Lexbe, in the course of using Lexbe's Digitization Services.
"Services" means the Digitization Services and the Other Services.

2. Scope of Agreement: Subject to the terms and conditions of this Agreement, Lexbe may provide Services to You.  At Your discretion, You may submit Source Materials to Lexbe for processing through an Order Form.  If Lexbe accepts the Order, then Lexbe will use commercially reasonable efforts, subject to this Agreement,  to process the Source Materials utilizing the Digitization Services, produce the Digitized Materials and return them to You.  You agree to pay for the Services as provided in the Order, or otherwise as provided in this Agreement.  The terms of this Agreement shall control all matters related to the Services and no contrary or additional terms or conditions of proposed by you will be accepted by Lexbe and any such proposed contrary or additional terms are to be construed as proposals for addition to this Agreement which are hereby rejected unless otherwise indicated in a written instrument executed by a principal of Lexbe making specific reference to this Agreement and the specific contrary or additional term proposed by you. Your submission of an Order or Your use of the Services shall be deemed unqualified acceptance of the terms and conditions included in this Agreement.

3. Customer Materials. Lexbe agrees that Customer Materials are intended to be confidential. Subject to applicable law or court order, Lexbe agrees not to disclose the Customer Materials to any person or entity other than You or persons You authorize or designate. If access to Your Customer Materials is sought by a third party, we will promptly notify You of such action, tender to You our defense responding to the request and cooperate with You concerning our response.  If there is a dispute regarding ownership of the Company Materials, Lexbe is authorized to interplead the materials into the possession of a court with proper jurisdiction, and to have its legal and other expenses reimbursed.  Lexbe does not own any of the Customer Materials. You, not Lexbe, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use of all Customer Materials.  Upon the completion of Services in connection with an Order, Lexbe will return the Source Materials to You, or destroy the Source Materials,  in accordance with the instructions in an Order.  Upon termination of Lexbe's Services for cause, and Lexbe shall have no obligation to maintain any Customer Materials.

4. Lexbe Technology. Lexbe alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Lexbe Technology. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Lexbe Technology or the Intellectual Property Rights owned by Lexbe. The Lexbe name, the Lexbe logo, and the product names associated with the Services are trademarks of Lexbe or third parties, and no right or license is granted to use them.

5. Order Submission, Estimates and Billing. You understand and agree that a submission of an Order is an estimate, and that the actual charge may vary from that stated in the Order.  You will be responsible for the final amount billed, not the estimated amount.  An Order is a proposal to Lexbe from You, and will not be binding on Lexbe until and unless accepted by Lexbe, and Lexbe is under no obligation to accept any Order, or on any specific terms.  In particular, estimated time of completion of an Order is subject to many factors, many outside of Lexbe's control.  Without limitation, large Orders may require more time to complete than stated in an Order.  Lexbe's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Lexbe's income.  You agree to provide Lexbe with complete and accurate billing and contact information. This information includes Your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information You have provided is materially false or fraudulent, Lexbe reserves the right to terminate Services.

6. Other Services.  If Lexbe is requested to engage in Other Services, and Lexbe agrees to perform the Other Services, then Lexbe will charge You and You will pay Lexbe for the Other Services as performed by Lexbe personnel at Lexbe's then current hourly rates for the specified personnel, plus any associated out-of-pocket expenses.

7. Non-Payment and Suspension of Services. In addition to any other rights granted to Lexbe herein, Lexbe reserves the right to suspend Services if Your  account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of one and one-half percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You agree that Lexbe may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees.  Lexbe may require a deposit against future Services, or prepayment of Services, at any time in its discretion.

8. Limitations in Digitization Services. You understand and agree that Digitization Services are imperfect, subject to error and may not always accurately reproduce or describe the Source materials. In particular, OCR almost always produces errors, and sometimes will produce many errors. A non-exclusive list of other possible errors in Digitization Services include: omitting materials, missing pages or files, poor quality scans or conversions, failing to recognize rotated pages in OCR, other OCR errors, conversion or coding errors. As part of the Digitization Services, Lexbe makes no effort to manually proof and compare Digitized Materials against the Source Materials, or otherwise manually check the Digitized Materials. If You wish for Lexbe to manually check the Digitized Materials, or engage in specific manual quality control procedures, please specifically request this and we may be able to provide a quote of service and the additional costs (hourly billing) for this request.   Digitization Services assume that files included in the Source Materials are not damaged, corrupt, encrypted, password protected, or subject to any other condition that would impede the ability of Lexbe to perform automated processing.  Handling of such files would be Other Services and processing would be billed at hourly rates

9. Your Representations and Warranties. You represent and warrant that You have the authority to enter into this Agreement, that it is binding, and that You have the legal right and authority to request and order the Services.  You represent and warrant that You have not falsely identified yourself nor provided any false information to Lexbe.  You represent and warrant that You are in lawful possession of, or have lawful right to access the Source Materials, and have a lawful purpose in requesting the Services.  

10. Lexbe Representations and Warranty.  Lexbe represents and warrants that it has the authority to enter into this Agreement, that it is binding, and that it has the legal right and authority to provide the Services.  Lexbe warrants that it will perform Services using reasonable care and skill and according to the current description contained in the Order Form and this Agreement. You agree to provide timely written notice of any failure to comply with this warranty so that Lexbe can take commercially reasonable corrective action. If any material portion of the Services do not conform to the foregoing warranty and You notify Lexbe within twenty (20) days of completion of the Services, Lexbe will at its option and expense and as the sole and exclusive remedy either: a) re-perform the nonconforming Services, or b) if re-performance is not commercially reasonable, refund the fees paid for the nonconforming Services. Lexbe is not responsible for nonconformities arising from inaccurate or incomplete data or information provided by you.

11. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFIED IN THE PRECEDING PARAGRAPH, LEXBE AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. LEXBE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) THE SERVICE WILL MEET ANY PARTICULAR REQUIREMENTS, NEEDS OR EXPECTATIONS (EVEN IF KNOWN TO LEXBE), (C) CUSTOMER DATA WILL BE ACCURATE, ACCURATELY REPRODUCED OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR ANYTHING PURCHASED OR OBTAINED THROUGH THE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICES AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND NON-INTERFERENCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LEXBE AND AFFILIATES.

12. DELAYS OR FAILURES. LEXBE'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS PARTICULAR OR COMMON IN THE USE OF COMPUTER, THE INTERNET AND ELECTRONIC COMMUNICATIONS. LEXBE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13. Indemnification. You shall indemnify and hold Lexbe and its Affiliates harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Source Materials is improper; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim against Lexbe arising out of a Proceeding to which You are a party or involved, which relates to the Services.  In such case, Lexbe shall (a) give written notice of the claim promptly to You; (b) give You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release Lexbe of all liability and such settlement does not adversely affect Lexbe's business or Service); (c) provide to You all available information and assistance.

Lexbe shall indemnify and hold You and Your affiliates harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Services directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; or (ii) a claim, which if true, would constitute a violation by Lexbe of its express representations or warranties in this Agreement. In such case, You shall (a) give written notice of the claim promptly to Lexbe; (b) give Lexbe sole control of the defense and settlement of the claim (provided that Lexbe may not settle or defend any claim unless Lexbe unconditionally release You of all liability and such settlement does adversely affect Your business or Service); (c) provide to Lexbe all available information and assistance.

14. LIMITATIONS OF LIABILITY.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN LEXBE AND YOU. LEXBE'S PRICING HEREIN REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. IN NO EVENT SHALL LEXBE’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY REASON (INCLUDING WITHOUT LIMITATION INDEMNIFICATION) EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

15. Limitations of Actions. Any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

16. Notice.   Lexbe may give notice to You by electronic mail to Your e-mail address on record in Lexbe's account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Lexbe's account information. You may give notice to Lexbe at any time by any of the following: written communication by facsimile to Lexbe at the following fax number: 888-836-2427; written communication delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Lexbe at the following address: Lexbe LC 3801 N. Capital of TX Hwy E420/152, Austin, TX 78746, addressed to the attention of: Principal; email sent to notice@Lexbe.com.  Notices to either party will be deemed delivered three days after mailing if sent by a nationally recognized overnight delivery service, or by certified or registered mail with the U.S. postal service.  Notices to either party will be deemed delivered only on actual receipt in the case of facsimile, by mail (other than by registered or certified mail) or by email.

17. Modification to Terms. Lexbe reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on Lexbe's website at the address: http://www.lexbe.com/hp/a/digitizationservicesagreement.htm. When revised, the "Version Date" at the top of this Agreement will also be modified. Prior versions of the Agreement will be available upon request. The updated version of this Agreement will apply only to new Services contracted after the revision date.  Otherwise, this Agreement may not be added to, modified, superseded or otherwise altered except by a written instrument signed by an officer of Lexbe and Customer.

18. Termination and Survival. Either party may terminate any Order, this Agreement or the Services at any time, for any reason.  Termination will not effect the obligation of you to pay Lexbe for Services already provided or expenses incurred.  If Lexbe is in the process of providing Services when it receives a termination notice, Lexbe will allocate it billing based on the time spent or percentage of the Order completed.  Upon termination of this Agreement for any reason, Your payment obligations and the provisions of sections 11-15 and 19-20 shall survive.  

19. Disputes Resolution.  If a dispute arises out of or relates to this Agreement, or the breach thereof, or relating to the use of the Services, or to any acts or omissions for which You may contend Lexbe is liable, including but not limited to any claim or controversy as to arbitrability ("Dispute"), and if the Dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association ("AAA") under its commercial mediation procedures before resorting to arbitration or any other dispute resolution procedure. If the Dispute cannot be settled by mediation, then the Dispute shall be finally, and exclusively, settled by arbitration. The arbitration shall be held before one arbitrator under the commercial arbitration rules of the AAA in force at that time, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration shall be located in Austin, TX.  To begin the arbitration process, a party must make a written demand.   Should a Dispute arise and should the arbitration provisions above become inapplicable or unenforceable, or in any instance of any lawsuit between You and Lexbe, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Austin, TX, and the matter will be heard by a judge without jury, and the parties waive all rights to a jury trial. If either party employs attorneys to enforce any right in connection with any Dispute, prevailing party shall be entitled to recover reasonable attorneys' fees. The prevailing party will be determined to be the party who has most successfully proven his case in the matter, not merely the party who has received a positive reward.

20. General. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Lexbe as a result of this agreement or use of the Services. This Agreement shall inure to benefit and bind the parties, their successors and assigns, but no party may assign this agreement without written consent of the other, except such consent is not required to the successor of all or substantially all of the assignor’s business or assets. The failure of Lexbe to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Lexbe in writing. This Agreement will benefit the parties, but no other persons or third-party beneficiaries. This Agreement will not be construed in favor of one party or other. This Agreement, together with any applicable Order Form, comprises the entire agreement between You and Lexbe regarding the subject matter of  this Agreement and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. 

Questions or Additional Information: If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to