Updated March 1, 2022
Welcome to the Lexchart website provided by Berkman LLC ("Berkman", "us", or "our"). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our websites and subdomains including lexchart.com and app.lexchart.com (each, a “Site,” and collectively, the “Sites”) and our collaboration tools and other products and services we may later own or operate (collectively the “Services”).
1. Agreement to these Terms
By using the Services, you agree to be bound by these Terms. If you do not agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
2. Changes to the Terms or Services
We may modify these Terms at any time, at our sole discretion. If we modify them, we will let you know either by posting the modified Terms on the Site or through other communications. If you continue to use the Services after a change, you are indicating that you agree to the modified Terms. We may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
3. Service Terms
3.1. Who may use the Services.
You may only use the Services if you are old enough to consent (by yourself and not by a parent or guardian) to share your data under applicable law.
3.2. Use Restrictions.
You will not, and will ensure your employees, contractors, and other persons associated with your Lexchart account (“Authorized Users”) do not, and will not encourage or assist third parties to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services (except to the extent that such a restriction is impermissible under applicable law); (ii) provide, sell, resell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Services, except with our express written consent; and (iii) copy, modify, create derivative works of, or remove proprietary notices from the Services.
3.3. Acceptable Use Policy.
You will comply with, and will ensure your Authorized Users comply with, our Acceptable Use Policy available at https://lexchart.com/terms/acceptable-use-policy/.
3.4. Authorized Users; Accounts.
As part of the registration process, you will provide certain information to create and maintain your account. You represent and warrant that all registration information you provide is truthful, accurate, and complete, and that you will maintain the accuracy of the information. You are responsible and liable for maintaining control over your account, including the confidentiality of your username and password, and are solely responsible and liable for all activities that occur on or through your account and all Authorized Users’ accounts, whether authorized by you or not.
3.5. Feedback; Use Rights.
We welcome feedback, comments, and suggestions (“Feedback”). As we need to be able to freely work with your Feedback to improve the Services, you hereby irrevocably transfer and assign all right, title, and interest (including all intellectual property rights, such as copyrights or trade secrets) in and to the Feedback, including any and all “moral rights” that you might have in such Feedback, and you hereby forever waive and agree never to assert any and all “moral rights” you may have in the Feedback. Additionally, we will have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services, and related systems and technologies, and Berkman will be free to use such data and information to maintain, improve, and enhance our products and services.
3.6. Reservation of Rights.
As between the parties, Berkman owns all right, title, and interest in the Services, and you own all right, title, and interest in any charts or diagrams you create on the Sites (“User Content”). Except as expressly set forth in these Terms, each party retains all right, title, and interest in and to its intellectual property rights. All rights not expressly granted are reserved, and no license, covenant, immunity, transfer, authorization, or other right will be implied, by reason of statute, estoppel, or otherwise, under these Terms.
3.7. Patent Assertion Entities.
A “Patent Assertion Entity,” sometimes referred to as a ‘non-practicing entity’ or a ‘patent troll,’ is (a) any entity that derives or seeks to derive most of its revenue from the offensive assertion of patent rights, or (b) directly or indirectly controls, is controlled by, or is under common control with an entity described in (a). If you are a Patent Assertion Entity or are acting on behalf of, or for the benefit of a Patent Assertion Entity, you will not assert, or authorize, assist, encourage, or enable any third party to assert, any claim, or pursue any actions, suits, proceedings, or demands, against Berkman or its affiliates that allege that the Services infringe, misappropriate, or otherwise violate any intellectual property rights (including patents). This section will survive any termination or expiration of these Terms.
Subject to the terms and conditions of these Terms, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable license worldwide (with the exception of (i) jurisdictions that are embargoed or designated as supporting terrorist activities by the United States Government and (ii) jurisdictions whose laws do not permit engaging in business with Berkman or use of the Services) for you to access and use the Services in connection with your internal business operations.
5. Charges and Payment
Certain Services are offered under different pricing plans, the limits and features of which are available at lexchart.com/pricing/. Your rights and obligations with respect to certain Services will be based in part on the pricing plan you choose.
5.2. Payment Terms.
When you purchase Services (each purchase is a “Subscription”), you expressly authorize us or our third-party payment processor to charge you for the Services. You represent and warrant that you have the legal right to use all payment methods that you provide to us.
All fees are stated and solely payable in U.S. Dollars, non-cancelable, non-refundable, and not subject to setoff. You are solely responsible for any bank fees, interest charges, finance charges, overdraft charges, and any other fees you incur as a result of the charges billed by us.
In the event that you fail to pay the full amount owed to us, we may limit your access to the Services, in addition to any other rights or remedies we may have.
5.3. Authorization for Recurring Payments.
All pricing plans involve recurring fees (each, along with any applicable taxes and other charges are a “Subscription Fee”). Depending on which options you choose, those fees may recur each month or year thereafter, at the then-current rate. Please note that our fees are subject to change, although we will notify you before we effect any change.
By agreeing to these Terms and purchasing a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Berkman. We (or our third party payment processor) will automatically charge you in accordance with the term of your Subscription (e.g., each month or year), on the calendar day corresponding to the commencement of your Subscription using the payment information you have provided.
In the event your Subscription begins on a day not contained in a later month, your payment method will be charged on such other day as we deem appropriate. For example, if you started a monthly Subscription on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on that date. We may also periodically authorize your payment method in anticipation of applicable fees or related charges.
Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or the Subscription in accordance with these Terms.
5.4. Cancelling Subscriptions
You may cancel your Subscription at any time but please note that such cancellation will only be effective at the end of the then-current Subscription period. Unless required by law, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION.
You can cancel through your Lexchart account settings within the Services. You will be responsible for all Subscription Fees incurred for the then-current Subscription period. Cancelling your Subscription will not terminate your Lexchart account. See Section 10 (Termination) below for information on terminating your Lexchart account.
Subscription Fees do not include taxes, and you agree to: (a) pay all sales/use, gross receipts, value-added, GST, personal property, or other tax (including any interest and penalties) with respect to the transactions and payments under these Terms, other than taxes based on our income, employees, or real property; and (b) be responsible for any filing of any information or tax returns with respect thereto.
All payments made by you to us under these Terms will be made free and clear of any deduction or withholding. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required by law, you will pay such additional amounts as are necessary so that the net amount received by us after such deduction or withholding will be equal to the full amount that we would have received if no deduction or withholding had been required. Each party will use commercially reasonable efforts to work with the other party to help obtain, reduce, or eliminate any necessary withholding, deduction, or royalty tax exemptions where applicable.
6.1. Confidential Information.
We (the “Discloser”) have disclosed or may disclose proprietary or non-public business, technical, financial, or other information (“Confidential Information”) to you (the “Recipient”). Our Confidential Information expressly includes non-public information regarding features, functionality, and performance of the Services, including security related information.
The Recipient will use the Discloser’s Confidential Information only for the purpose of evaluating whether or not to use (or continue to use) the Services. The Recipient will not disclose the Discloser’s Confidential Information to parties other than the Recipient’s employees, contractors, affiliates, agents, or professional advisors (“Representatives”) who need to know it and who have a legal obligation to keep it confidential. The Recipient will ensure that its Representatives are subject to no less restrictive confidentiality obligations than those herein. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information: (a) if directed by Discloser; or (b) to the extent required by applicable legal process, provided that the Recipient uses commercially reasonable efforts to (i) promptly notify the Discloser in advance, to the extent permitted by law, and (ii) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. The obligations set forth herein will survive for so long as these Terms are in effect between the parties and for five years thereafter.
In the event of any loss or corruption of any data associated with the Services, Berkman will use commercially reasonable efforts to restore the lost or corrupted data from the latest relevant backup maintained by Berkman. EXCEPT FOR THE FOREGOING, BERKMAN WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF ANY DATA.
We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Services, and we make no guarantees around data retention or preservation. EXCEPT AS SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
BERKMAN RESOURCES. BERKMAN DOES NOT WARRANT OR SUPPORT, AND WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY OF ANY KIND FOR, ANY APPLICATION(S) AND/OR MATERIAL(S) THAT ARE DEVELOPED BY A PARTY OUTSIDE OF BERKMAN'S ORGANIZATION (“NON-BERKMAN RESOURCES”).
You will indemnify and hold harmless Berkman and its officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services; (ii) your User Content; or (iii) your violation of these Terms.
9. Limitations of Liability.
NEITHER BERKMAN NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES (“SUPPLIERS”) WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BERKMAN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT WILL BERKMAN OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO BERKAN IN THE PRECEDING TWELVE MONTHS FOR THE SERVICES, OR IF YOU HAVE NOT HAD ANY SUCH PAYMENT OBLIGATIONS, ONE HUNDRED UNITED STATES DOLLARS ($100).
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BERKMAN TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice or liability to you, provided that, if you have paid for a Subscription and the termination is not due to your breach of these terms, Berkman will refund you any prepaid fees for the period of your Subscription that extends beyond the effective date of such termination.
You may cease use of the Services at any time. If you are paying for a Subscription, you may terminate your Subscription through the process specified in these Terms.
Upon any termination, discontinuation, or cancellation of Services or your Lexchart account, the following provisions of these Terms will survive: Service Terms, Charges and Payment (to the extent you owe any fees at the time of termination); Confidentiality; provisions related to permissions to access User Content (to the extent applicable); Warranty Disclaimers; Indemnity; Limitations of Liability; Termination; and the Miscellaneous provisions. Furthermore, we may remove or delete your User Content within a reasonable period of time after the termination or cancellation of Services or your Berkman account.
11.2. Copyright and IP Policy.
Berkman respects copyright law and expects its users to do the same.
11.3. Force Majeure.
Berkman will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as it uses commercially reasonable efforts to avoid or remove those causes of non-performance.
Any notices or other communications provided by Berkman under these Terms, including those regarding modifications to these Terms, will be given by Berkman: (i) via e-mail; or (ii) by posting to the Sites. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision hereof and it is the intent and agreement of the parties that these Terms will be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and that achieves the same objective.
Certain features of the Services may allow you to participate in teams, groups or organizations (each a “Group”). In those situations, the administrator, owner, or equivalent of the Group (“Admin”) is responsible for the compliance of these Terms by each other member of the Group, payment of the Subscription Fee (if applicable), and all matters related to the Group. For clarity, each member of the Group is still responsible for their own compliance with these Terms.
These Terms (and your access to any of the Services) are not assignable or transferable by you without our prior written consent. Any purported assignment in violation of this section is null and void.
11.8. Service Providers.
For the avoidance of doubt, Berkman may engage third parties as service providers to the Services, including web hosting providers.
11.9. No Partnership.
No agency, partnership, joint venture, or employment is created as a result of these Terms, and neither party has any authority of any kind to bind the other party in any respect whatsoever.
11.10. Governing Law.
These Terms will be governed by the laws of the State of Texas without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
11.11. Dispute Resolution for Individuals
You and we both agree to resolve disputes related to your use of the Services or these Terms (each, a “Claim”) in binding arbitration instead of court, except that either party may bring suit in court to enjoin the infringement or other misuse of intellectual property rights.
What is arbitration?
Arbitration does not involve a judge or jury. Instead, a neutral person (the “arbitrator”) hears each party’s side of the dispute and makes a decision that is finally binding on both parties. The arbitrator can award the same relief as a court could, including monetary damages. While court review of an arbitration award is limited, if a party fails to comply with the arbitrator’s decision, then the other party can have the arbitration decision enforced by a court.
Can a Claim be part of a class action or similar proceeding?
NO. YOU AGREE TO RESOLVE YOUR CLAIMS WITH US SOLELY ON AN INDIVIDUAL BASIS, AND NOT AS PART OF A CLASS, REPRESENTATIVE OR CONSOLIDATED ACTION. WE AGREE TO DO THE SAME, WHETHER OR NOT YOU OPT OUT OF ARBITRATION. ACCORDINGLY, UNLESS YOU OPT OUT OF ARBITRATION, YOU AND WE BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR MEMBER IN ANY CLASS, REPRESENTATIVE OR CONSOLIDATED ACTION.
What rules apply in the arbitration?
The arbitration will be conducted under the American Arbitration Association (“AAA”) Consumer Arbitration Rules (the “AAA Rules”). The AAA Rules are available at www.adr.org or by calling 1-800-778-7879.
How will the arbitration be conducted? How much does it cost?
The arbitration will be conducted by the AAA or a comparable arbitration body in the event the AAA is unable to conduct the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
Unless the arbitrator finds your Claim frivolous, we’ll pay for all filing, administration and arbitrator fees if your Claim is for less than $10,000, and we will not seek our attorneys’ fees and costs if we prevail in the arbitration. The arbitration may be conducted in writing, remotely (e.g., by videoconference), in Houston, Texas, United States or at some other location to which we both agree.
How do I start an arbitration proceeding?
To begin an arbitration proceeding against us, send a letter requesting arbitration and describing your Claim to Berkman LLC, 109 East 17th Street, Suite 4137 Cheyenne, WY 82001 with an electronic copy sent to firstname.lastname@example.org. If we request arbitration against you we will give you notice at the email address or street address you provided.
INSTRUCTIONS FOR OPTING-OUT OF ARBITRATION
If you do not want to agree to arbitrate your Claims as explained above, then you can opt-out of this arbitration agreement by notifying us of your decision in writing at Berkman LLC, 109 East 17th Street, Suite 4137 Cheyenne, WY 82001 with an electronic copy sent to email@example.com. You must opt-out within 30 days of the date you first agree to these Terms or any updated Terms.
DISPUTE RESOLUTION IN THE ABSENCE OF ARBITRATION
The sole jurisdiction and venue for any Claims that are not handled by arbitration will be the state and U.S. federal courts located in Houston, Texas, and both parties consent to the jurisdiction of such courts. BY ENTERING INTO THESE TERMS, YOU AND BERKMAN ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY.
This Section 11.13 only applies to Claims between us and individuals, and is governed by The Federal Arbitration Act.
11.12. Dispute Resolution for Entities.
If you are accessing and using the Services on behalf of a company or other legal entity, any claim, cause of action, or dispute between the company or other legal entity and Berkman arising out of or relating to these Terms or the Services will be resolved exclusively accordingly to the process set forth in these Terms, except that, to the extent legally permitted, (1) each party will be responsible for their own filing, administrative, arbitrative and similar fees, (2) the losing party will pay the prevailing party for all costs and attorney’s fees and (3) the AAA Commercial Arbitration Rules will apply to any arbitration between us.
Whenever the words “including,” “include,” or “includes” are used herein, they will be deemed to be followed by the phrase “without limitation.”
11.14. Beta Features.
Product features clearly identified as Alpha or Beta features (collectively “Early Access Features”) made available by Berkman are provided to you for testing purposes only, and Berkman does not make any commitment to provide Early Access Features in any future versions of the Services. You are not obligated to use Early Access Features. Berkman may immediately and without notice remove Early Access Features for any reason without liability to you. Notwithstanding anything to the contrary in the Terms, all Early Access Features are provided "AS IS" without warranty of any kind and without any performance obligations.
11.15. Government Use.
If you are a U.S. government or U.S. public entity (or use of the Services is for the U.S. government), the following terms apply:
a. Use By or For the U.S. Government. The Services and related documentation are “commercial items” (as defined at 48 C.F.R. §2.101), consisting of “commercial computer software” and “commercial computer software documentation” (as used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable). In accordance with 48 C.F.R. § 12.211-12.212 and 48 C.F.R. §§ 227.7102 and 227.7202, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in these Terms, except that, for U.S. Department of Defense agencies and end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a U.S. Government agency or end user has a need for rights not conveyed under these terms, it must negotiate with Berkman to determine if there are acceptable terms for transferring such rights, and a mutually acceptable addendum to these Terms will be required in any applicable contract or agreement.
b. Waived Terms. The sections in these Terms titled “Dispute Resolution,” “Indemnity,” and any other terms inconsistent with federal law are hereby waived to the extent they are inconsistent with federal law.
11.16. Entire Terms.
These Terms supersedes all other agreements between the parties relating to its subject matter. The parties expressly agree that any different or additional terms set forth in any purchase order, vendor portal, code of conduct, or other similar documentation provided by you will not apply between the parties even if signed, acknowledged or accepted by Berkman, unless Berkman specifically references this clause and waives its rights.