Effective Date: June 25, 2011
This Agreement will govern the provision of Services from Lexbe to you related to electronic discovery, as provided herein. Placing an Order for Services, or otherwise utilizing the Services, indicates your acceptance of the terms of this Agreement, effective as of the Effective Date.
1. Definitions. As used in this Agreement and in any Orders, the following terms will have the following meanings.
"Affiliate(s)” means any individual or entity, who or that, directly or indirectly, controls, is controlled by, or is under common control with, the subject individual or entity. Control includes ownership or voting control of more than 50% of the voting, equity securities of a subject entity.
"Agreement" means this eDiscovery Services Agreement.
"Completed Materials" means electronic files created by Lexbe from the Source Materials, as part of the Services.
"Conversion Services" means Lexbe's services identified during the ordering process that involve converting one type of file format to another file format, including without limitation conversion of email to PDF or TIFF, Native File to PDF or TIFF, and conversion of email, Native Files or other electronic files to PDF, TIFF or other file formats.
"Customer" and "you" and "your" each refers to the person(s) and entity(ies) 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 or related materials. If you use or order the Services on behalf of another individual, company or other entity of any kind as an employee or other agent, then 'Customer', 'you' and 'your' refers to such individual, company or other entity as well.
"Customer Materials" means the Source Materials and the Completed Materials.
"eDiscovery Services" means the services specified in an Order, provided or to be provided by Lexbe, which may include without limitation: Conversion Services, performing OCR, extracting and manipulating file metadata, creating load files, coding, identifying documents separation points, manipulating files, Bates numbering or stamping, filtering or culling email by date, keyword or other criteria, and performing related electronic discovery or litigation support 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, 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, including without limitation software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information.
"Interpleader Action" means an action by Lexbe to interplead Customer Materials to a court or other tribunal of competent jurisdiction in connection with a dispute over ownership of Customer Data.
"Job" refers to Sources Materials submitted to Lexbe for eDiscovery Services as part of single grouping that Lexbe performs as part of a single run or process.
"Lexbe" means Lexbe LC, a Texas limited liability company, 3801 N. Capital of TX Hwy, Suite E240/306, Austin, TX 78746.
"Lexbe Associated Persons" means the officers, directors, owners, employees, independent contractors, attorneys, agents and Affiliates of Lexbe.
"Lexbe Online" means Lexbe's internet-based litigation document management and review application, accessible via http://www.Lexbe.com or another designated web site or IP address.
"Lexbe Technology" means Lexbe's Intellectual Property Rights used by Lexbe or made available to you by Lexbe in connection with the Services.
"Native File Format" means default file format a program uses to store data on disk. Examples are .doc and.docx for Microsoft Word, .and xls and .xlsx for Microsoft Excel.
"Native Files" means electronic computer files stored in Native File Format.
"OCR" means 'optical character recognition' which is the process of computer-analyzing scanned images (from documents) and electronically converting them into computer-readable text. The output may be text files (e.g., ASCII files), or may be embedded in more complex files, such as searchable PDF (also known as 'text under PDF') files.
"Order" means the record evidencing the submission or request for eDiscovery Services, including any sufficient individual or combination of online or written forms, quotes, email exchanges or written documents, invoices, receipts, statements or purchase orders, or submission of a deposit, payment or payment information to Lexbe, or submission of Source Materials to Lexbe, which demonstrate(s) your request for specific eDiscovery Services and acceptance by Lexbe. In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement shall prevail.
"Other Services" means service activities requested of Lexbe by you outside of standard eDiscovery Services as described in an Order, or Services requested or required in connection with a Proceeding involving you and/or the Customer Materials, or in connection with a subpoena served on Lexbe related to a Proceeding involving you and/or the Customer Materials, in each case 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 matters within Lexbe's expertise, but excluding Lexbe Online.
“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.
"Services" means the eDiscovery Services and the Other Services.
“Source Materials" means electronic files or paper-based documents provided by you to Lexbe, in the course of using Lexbe's eDiscovery Services, but excluding any Lexbe Technology.
"Technology Injunction Action" means a Proceeding brought by Lexbe before any tribunal with jurisdiction to request an injunction and/or a temporary restraining order, to protect Lexbe Technology.
2. Scope of Agreement: Lexbe may provide Services to you, now or in the future, as part of one or multiple Jobs. At your discretion, you may submit Source Materials to Lexbe for processing through an Order. If Lexbe accepts the Order, then Lexbe will use commercially reasonable efforts, subject to this Agreement, to process the Source Materials utilizing the eDiscovery Services, produce the Completed 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 contrary or additional term proposed by you. Your submission of an Order or your use of the Services shall be considered to be an unqualified acceptance of this Agreement.
3. Customer Materials. Lexbe agrees that Customer Materials are intended to be confidential. Lexbe does not claim ownership in any of the Customer Materials. Subject to applicable law or court order, Lexbe agrees not to disclose the Customer Materials to any person or entity other than as 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. 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 a Job, Lexbe will transfer the Completed Materials to you or to a third party per your instructions, by (i) FTP or other transfer through the Internet, (ii) copying the Completed Materials to CD or DVD disc(s), flash drive(s), or portable or fixed disc drive(s) and transferring through a courier service or by the U.S. mail, or (iii) making Completed Materials available to you through an account on Lexbe Online. When sending materials otherwise other than over the internet, Lexbe may send Customer Materials by a recognized national courier service or U.S. mail, to an addressee as directed by you, in unencrypted form unless you specifically instruct encryption. Upon the completion of a Job, Lexbe will destroy the Source Materials, unless instructed to return the Source Materials to you in accordance with an Order. Upon completion of a Job after transmission of the Customer Materials to you, or termination of Lexbe's Services for any reason, Lexbe shall have no obligation to retain the Customer Materials.
4. Lexbe Technology. Lexbe alone (and its licensors, where applicable) owns and shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Lexbe Technology, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services or Lexbe Technology. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Lexbe Technology. The Lexbe name, the Lexbe logo, and the product names associated with Lexbe Online are trademarks of Lexbe or third parties, and no right or license is granted to use them. Lexbe may protect its rights in the Lexbe Technology through a Technology Injunction Action and any required bond will be set at ten thousand dollars.
5. Order Submission, Estimates and Billing. 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 a Job is subject to many factors, many outside of Lexbe's control. The terms of an Order are based on a good faith estimate of the work and resources required. If Lexbe determines once it begins working on a Job that the estimate of requirements or resources required is materially incorrect, then Lexbe may notify you and Lexbe may elect to terminate the Job and return or destroy the Customer Materials (as you elect) deliver any Completed Materials to you and be paid pro rata for the portion of the Job completed. 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.
6. Other Services. If you utilize Lexbe Online, you agree to be bound by its specific service agreement as well, located at http://www.lexbe.com/hp/a/lexbe-online-agreement.htm. If Lexbe is requested by you to engage in Other Services, or Lexbe is required to engage in Other Services by others in connection with a Job or Proceeding involving you and/or the Customer Materials, 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 required personnel, plus any associated out-of-pocket expenses.
7. Deposits, Payment and Suspension of Services. In addition to any other
rights granted to Lexbe by this Agreement, Lexbe reserves the right to suspend
Services if your
account becomes delinquent or otherwise falls into arrears. Delinquent invoices
(after 30 days) 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 any credit card
you provide or otherwise bill you for such unpaid fees. Lexbe
may require a deposit against future Services, or prepayment of
Services, at any time or times in its discretion, and may rightfully
refuse to complete Services or deliver Completed Materials if unpaid.
8. Limitations in eDiscovery Services. You understand and agree that eDiscovery Services are inherently imperfect, and subject to error. The Completed Materials comprise at best an approximation of Source Materials and cannot and will not reproduce or represent all elements of the Source Materials accurately or completely in all material respects. You understand and accept that the only way to review Source Materials with complete accuracy is for you to review the Source Materials in applicable Native File Format applications, and anything less is an approximation and done for reasons including convenience, speed and cost. Additionally, OCR and Conversion Services of a document almost always produces errors, and sometimes will produce many errors or fail completely. A non-exclusive list of other possible errors in OCR include: failing to recognize rotated pages, failing to recognize objects or text in pages, omitting materials, missing pages or files, poor quality scans, skipping password protected, corrupted, of an unrecognized format, failing to recognize languages properly, other OCR errors, and otherwise failing to recognize text properly. A non-exclusive list of other possible errors in Conversion Services include: omitting materials, missing pages or files, skipping password protected, corrupted, of an unrecognized formats, not properly identifying or converting embedded objects, images or files, comments, filters, drafts, or other elements of a page or file. As part of the eDiscovery Services, Lexbe employs various general quality control procedures on a per Job basis, but this is no guarantee against errors. In particular, Lexbe makes no effort to examine individual files or to proof and compare Completed Materials against the Source Materials, or otherwise manually check the Completed Materials. If you wish for a manually check of the Completed Materials, or the application of any specific quality control procedures, you will need to arrange for this yourself. Also, the Lexbe Technology contains bugs, defects and errors (like substantially all computer software of any complexity) and these errors can lead to errors in the eDiscovery Services.
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, and Lexbe violates no laws or agreements applicable to you, or applicable to the Source Materials, of which you have knowledge, in conducting the Services on your behalf.
10. Lexbe Representations and Warranties.
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 commercially reasonable care and
skill and according to the current description contained in the
Order 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 sixty (60) days of completion of the Services,
Lexbe will at its option and expense and as your sole and exclusive
remedy either: a) re-perform the nonconforming Services, or b) if
re-performance is not commercially reasonable, refund the fees paid
and reasonably allocable for the nonconforming Services, based on
the total volume of Source Materials processed.
11. Indemnification. You shall indemnify and hold Lexbe and the Lexbe Related Persons 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 alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation of your representations and warranties; or (iii) a claim arising from the breach by you, your Affiliates or your agents of this Agreement; provided in any such case that Lexbe (a) gives written notice of the claim to you; (b) Lexbe gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you obtain unconditionally releases of Lexbe and Lexbe Related Persons of all liability and such settlement does not adversely affect Lexbe's business or Service; (c) Lexbe provides to you all available information and assistance; and (d) Lexbe has not compromised or settled such claim.
Lexbe shall indemnify and hold you
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 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 Section 10 of 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.
The liability of parties under this section may be limited in amount or otherwise by other sections of this Agreement, including Sections 12-16.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFIED IN THE
SECTION 10, LEXBE AND LEXBE AFFILIATED PERSONS MAKE NO
REPRESENTATION, WARRANTY, OR GUARANTY OF ANY KIND, WHETHER IN ACTION
OF CONTRACT, NEGLIGENCE, OTHER TORT OR OTHERWISE, EVEN IF LEXBE OR
LEXBE AFFILATED PERSONS WERE INFORMED IN ADVANCE OF THE POSSIBILITY
OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION,
WARRANTY OR GUARANTEE AS TO THE RELIABILITY,
TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR
COMPLETENESS OF THE SERVICES. LEXBE AND LEXBE AFFILIATED PERSONS DO NOT REPRESENT OR WARRANT
THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE, (B) THE SERVICES WILL MEET ANY
PARTICULAR REQUIREMENTS, NEEDS OR EXPECTATIONS (EVEN IF KNOWN TO
LEXBE), (C) COMPLETED MATERIALS WILL BE WITHOUT ERROR, ACCURATE OR RELIABLE, (D) THE
SERVICES ARE BUG-FREE, ERROR-FREE, OR DEFECT-FREE OR THAT BUGS, ERRORS
OR DEFECTS WILL BE CORRECTED THE SERVICES ARE 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 LEXBE AFFILITATED PERSONS.
13. DELAYS OR FAILURES. THE OBLIGATIONS OF ANY PARTY TO THIS AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS PARTICULAR OR COMMON IN THE USE OF COMPUTER, THE INTERNET AND ELECTRONIC COMMUNICATIONS. NO PARTY IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
14. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL A PARTY TO THIS AGREEMENT BE LIABLE TO ANOTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY TYPE OR KIND (INCLUDING WITHOUT LIMITATION LOSS OF DATA, FILES OR DOCUMENTS, 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 HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER AN ACTION IS BROUGHT IN CONTRACT, NEGLIGENCE, OTHER TORT, OR OTHERWISE. LEXBE UTILIZES THIRD PARTY SOFTWARE LIBRARIES AS PART OF THE SERVICES AND THE LEXBE TECHNOLOGY AND WILL HAVE NO LIABILITY IN CONNECTION WITH ANY FAILURE OF SERVICES IN CONNECTION WITH THOSE LIBRARIES FOR ANY REASON, INCLUDING LEXBE'S SELECTION OF THE SOFTWARE LIBRARIES. IN NO EVENT SHALL LEXBE’S AGGREGATE LIABILITY IN CONNECTION, RELATED TO, OR 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. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. LEXBE'S PRICING HEREIN REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
15. NO LIABILITY OF RELATED PERSONS. IN NO EVENT WILL ANY
LEXBE RELATED PERSON HAVE ANY LIABILITY OF ANY KIND, IN RELATION TO ANY MATTER INVOLVING LEXBE
OR RELATED TO THIS AGREEMENT OR THE SERVICES, AND YOU AGREE TO LOOK SOLELY TO LEXBE FOR SATISFACTION OF ANY SUCH CLAIM,
AND TO NOT MAKE ANY
SUCH CLAIM OR BRING ANY SUCH ACTION
AGAINST LEXBE RELATED PERSONS. ANY SUCH CLAIMS ARE HEREBY WAIVED.
IF SUCH A CLAIM IS MADE IT WILL BE DISMISSED BY THE
16. 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
17. Notice. Lexbe may give notice by means of any of the following: a notice on an invoice or receipt sent to you, or a notice by electronic mail to your contact person as reflected on the books of Lexbe. Lexbe may also give notice by written communication sent by first class mail or pre-paid post to your address on record in Lexbe's account information. In each case, such notice will be deemed delivered when made available or sent. 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 E240/306, Austin, TX 78746, addressed to the attention of: Principal; email sent to email@example.com.
18. Modification to Agreement. 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/eDiscoveryservicesagreement.htm. When revised, the "Version Date" at the top of this Agreement will also be modified. The updated version of this Agreement will apply only to new Orders after the revision date. Otherwise, this Agreement may not be added to, modified, superseded or otherwise altered except by a written instrument signed by you and a principal of Lexbe.
19. 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 11-16 and 20-22 shall survive.
20. 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 a party may contend Lexbe or Lexbe Related Persons are or may be liable, including but not limited to any claim or controversy as to arbitrability (collectively, the "Dispute"), but excluding a Technology Injunction Action or an Interpleader Action, and if the Dispute cannot be amicably settled, then THE DISPUTE SHALL BE FINALLY, AND EXCLUSIVELY, SETLLED BY ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). 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 conducted in Austin, TX. The arbitrator will conduct the arbitration in an expeditious manner, and will set and enforce limits as to the extent of discovery, number of witnesses, length of testimony, consideration of motions, and other matters, proportional to the size and extent of claims, and to meet the goals of commercial arbitration to adjudicate disputes in a fast and cost-effective manner. To begin the arbitration process, a party must make a written demand of arbitration. Should a Dispute arise and should the arbitration provisions above become inapplicable or unenforceable, or in any instance of any lawsuit between a party 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 a party employs attorneys to enforce any right in connection with any Dispute, the 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 such party's case in the matter, not merely the party who has received a positive reward.
22. 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. 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. If there is a dispute regarding ownership of the Customer Materials, you authorize Lexbe to bring an Interpleader Action and to have its legal and other expenses in connection with Interpleader Action reimbursed. The standard of conduct and care in connection with the Services will be a commercially reasonable care standard (subject to limits in this Agreement), and not a best efforts standard. ANY DISCLAIMER OF WARRANTY OR LIMITATION OF LIABILITY OR DAMAGES IN THIS AGREEMENT WILL APPLY EVEN IF THE INDIVIDUAL OR ENTITY DISCLAIMING A WARRANTY OR LIMITING LIABILITY OR DAMAGES WAS NEGLIGENT, GROSSLY NEGLIGENT OR RECKLESS. If a party is entitled under this Agreement to make a decision or determination, or take or refuse an action, then that decision, determination or action may be made in such party's sole discretion, unless this Agreement provides expressly and specifically to the contrary. If the obligations of this Agreement apply to more than one individual or entity, then the obligations are joint and several for each obligated individual or entity. Except for benefits to the Lexbe Related Persons, this Agreement shall not confer any rights or remedies upon any third-party other than the parties to this Agreement and their respective successors and permitted assigns.