By electronically accepting this Agreement or using this website, Subscriber agrees to the terms of this Agreement. If Subscriber does not agree with these terms and conditions,Subscriber must not accept this Agreement and shall not use the services.
This Agreement was last updated on April 2, 2017. It is effective between Subscriber and File &ServeXpress, LLC doing business as File & ServeXpress (“File & ServeXpress”) as of the earlier of the date of Subscriber accepting this Agreement and or using File & Serve Delaware.
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 encourages all of its users who are not lawyers to consult with an attorney before using File & Serve Delaware to file, serve or receive electronic and/or paper documents in a legal action.
Section 1: Definitions
The following quoted terms not otherwise defined herein shall have the following meanings:
1.1: “Subscriber”means a Subscriber that pays for use of File & Serve Delaware on a transactional basis and who has the functionality within the File & Serve Delaware System as is set forth in the Section 1.7.
1.2 “Court” means the applicable state Court or administrative agency that has entered into an agreement with File & ServeXpress to accept, send, retrieve and maintain Documents in electronic format through File & Serve Delaware.
1.3 “Courts” mean all state courts and other administrative agencies that have entered intoan agreement with File & ServeXpress to accept, send, retrieve and maintain Documents in electronic format through File & Serve Delaware.
1.4 “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 Delaware.
1.5 “Documents” mean pleadings, Court documents and other legal documents, filings,correspondence and associated data available on File & Serve Delaware.
1.6 “File & Serve Delaware” means the File & Serve Delaware service that permits Subscriber to: (a) file Documents with a Court in electronic form; (b) send or serve an electronic copy of Documents on other parties and their lawyers; (c) perform other functions available through File & Serve Delaware; (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 Delaware. File & Serve Delaware also permits Courts to file Documents and orders with notification to Subscribers.
1.7 “File & Serve Delaware System” means the proprietary business process component and systems component of File & Serve Delaware. The business process component includes special know-how and procedures to provide access and support to individuals who conduct electronic Transactions. The File & Serve Delaware System’s components consist of the Site, databases, and computer programs that reside on hardware located at third party data centers.
1.8 “Filing Receipt” means a confirmation that is transmitted to Subscriber after it has submitted a Transaction through File & Serve Delaware 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 Delaware. According to Court Rules, the Filing Receipt may serve as Subscriber’s proof of eFiling.
1.9 “Email ID” or “Username” means the email address/username provided to File & Serve Delaware by the Subscriber and its Users, if applicable. This Email ID permits access to, and use of, File & Serve Delaware. Passwords must conform to the requirements set forth on the site, which are subject to change to ensure privacy and security of data.
1.10 “Site” means the File & Serve Delaware website currently located at http://fileandservedelaware.com (but which is subject to change upon notice to Subscriber) at which Subscriber, by entering a valid email address, may: (a) file and serve Documents; (b) access and view Documents eFiled and eServed by Subscriber or other subscribers; and (c) maintain personal, firm and case account information.
1.11 “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.
1.12 “Transaction” means the record that is created by File & Serve Delaware with respect to a sent, eFiled or eServed 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.
1.13 “User” means those employees, independent contractors and agent of a Subscriber authorized by the Subscriber to use File & Serve Delaware. Subscribers will be responsible for any and all use of File & Serve Delaware and for all charges incurred by their Users.
1.14 “Completed Filings” means any eFiled and/or eServed filing(s) that have been submitted, served, accepted and/or rejected. The details of the completed filings as well as the documents that were filed and/or served are viewable by a user within the File & Serve Delaware system.
1.15 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 File & ServeXpress and Subscriber.
2.2 By subscribing to File & Serve Delaware, Subscriber will be permitted to use File & Serve Delaware to eFile, eServe to the applicable Courts. In exchange for access to File & Serve Delaware, Subscriber agrees to the terms of this Agreement and to pay all applicable fees associated with use of File & Serve Delaware as more specifically set forth in Section 4.
2.3 Subscriber shall be subject to the terms of this Agreement. By using File & Serve Delaware, all Users accept the terms of this Agreement. File & ServeXpress has the right to notify each User of the terms of the Agreement and Subscriber shall be responsible for the actions of each of its Users.
3. LICENSE TO USE FILE & SERVE DELAWARE; FILE & SERVE DELAWARE FEATURES AND LIMITATIONS
3.1 File & ServeXpress hereby grants Subscriber a non-exclusive, non-transferable, limited, terminable license to use File & Serve Delaware, 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 Delaware 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 Delaware, provide any on-going services to third parties through or using File & Serve Delaware, 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 File & ServeXpress and Subscriber hereby grants to File & ServeXpress any and all right, title and interest to all records or data transferred in violation of these provisions.
3.3 File & Serve Delaware 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 Delaware 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 The following is a description of the features of File & Serve Delaware that are available to all Subscribers and the limitations of such features:
(a) “Data Entry” is a feature that allows Subscriber to enter case information. Subscriber is solely responsible for providing accurate information. File & ServeXpress does not edit or update information if a Transaction cannot be completed because the information provided by Subscriber is inaccurate;
(b) “eFile” or “eFiling” is a feature that allows Subscribers to electronically submit Documents through File & Serve Delaware to Courts that have approved the use of File & Serve Delaware in their Court Rules or Administrative Directive. Subscriber is solely responsible for loading and transmitting Documents correctly and in a timely fashion and for confirming, through File & Serve Delaware the Documents have been accepted for eFiling by the Court;
(c) “eServe,” “eServing,” or “eService” means the official service of Documents on parties to a lawsuit and/or their attorneys by submitting the Documents electronically through File & Serve Delaware (excluding service of process). The term “eService” pertains only to subsequent pleadings filed in a litigation matter, not the initial Complaint. The ability to eServe 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. It is Subscriber’s sole responsibility to determine when a Document can or must be eServed as opposed to service in paper.
4.1 The use of File & Serve Delaware by Subscribers will result in the accrual of “Usage Fees” and “Court Fees” (in some jurisdictions), as defined below.
(a) Usage Fees are those fees imposed by File & ServeXpress for use of File & Serve Delaware and may vary based upon a number of factors including the State, Court, Location, and Case Type, and features being used. Usage Fees will be set forth on a project specific basis and are subject to change from time to time. Subscriber will check the File & Serve Delaware 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 Delaware 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 may apply even if a document is rejected by a Court: File & ServeXpress will not provide a refund. Notwithstanding the foregoing, File & ServeXpress 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 Delaware, or accessed by Subscriber through File & Serve Delaware in instances where File & ServeXpress has agreed to collect such fees on behalf of the Subscriber, Court or governmental entity. FILE & SERVEXPRESS MAY COLLECT AND REMIT COURT FEES IN SOME JURISDICTIONS. HOWEVER, SUBSCRIBER IS SOLELY RESPONSIBLE FOR THE PAYMENT OF COURT FEES. FILE & SERVEXPRESS MAY ALSO ASSESS AN ADMINISTRATIVE FEE FOR THE ADVANCEMENT OF COURT FEES.
4.2 At the discretion of File & ServeXpress, in addition to Usage Fees and Court Fees, File & ServeXpress may assess File & Serve Delaware 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 File & ServeXpress in a format other than an Excel spreadsheet or Flat File Text format. In addition, File & ServeXpress may assess File & Serve Delaware Subscribers a reasonable maintenance fee for the general upkeep of the case service/notice lists.
4.3 Subscribers will pay File & ServeXpress the applicable Usage Fees for the use of File & Serve Delaware via a credit card or monthly invoicing. Applicable fees will be posted on the Site from time to time by File & ServeXpress. If Subscriber’s credit card charge is not approved, the Transaction will not be processed. Select approved Subscribers will be invoiced on a monthly basis, via an electronic invoice. Subscribers choosing to receive an electronic invoice may not be charged an additional fee for such electronic invoice. Subscribers choosing to receive a hard copy invoice will be charged a fee. The invoice will set forth a reasonably detailed list of the Usage Fees and, if applicable, Court Fees incurred. At the discretion of File & ServeXpress, in addition to Usage Fees and Court Fees, File & ServeXpress may assess reasonable administrative fees upon Subscribers who pay monthly invoices through multiple (in excess of five) checks or payments. Subscribers are ultimately and fully responsible for payment to File & ServeXpress of all fees, charges and other amounts (including, without limitation, any statutory filing, other Court fees or administrative fees), incurred through its Organization’s Email IDs. The duty to pay any and all fees incurred for use of File & Serve Delaware is responsibility of the Subscriber and shall not be delegated to any third party(s) without prior authorization from File & ServeXpress.
4.4 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. Subscribers will reimburse any costs or expenses (including, but not limited to, reasonable attorney’s fees) incurred by File & ServeXpress to collect any amounts which are not paid when due or for any other failure to honor your payment obligations under this Agreement. Additionally, File & ServeXpress may terminate the Subscriber’s access (and access by all its Users) to File & Serve Delaware in accordance with Section 7 for any delinquent account and report such Subscriber’s failure to pay File & ServeXpress 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 Delaware, including having the minimum system and software required by File & ServeXpress to use File & Serve Delaware; 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 service or device and service fees associated with such access.
5.2 Subscribers are solely responsible for training and monitoring their Users. Subscriber’s authorization of a User to obtain a username is also an authorization of that User to incur charges such as Court Fees and File & Serve Delaware Usage Fees (as such terms are defined in Section 4.1 above). 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 usernames/passwords. Subscriber will promptly notify File & ServeXpress if a username/password is lost, stolen, no longer valid, has been misused, or compromised in any manner. File & ServeXpress will promptly cancel such username/password. File & ServeXpress 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 a username/password. Subscribers are solely responsible to control all usernames/passwords appropriately assigned by File & ServeXpress. File & ServeXpress may immediately suspend access to File & Serve Delaware, without notice to you, if it suspects unauthorized use of a username/password or in the event of an activity that might compromise File & Serve Delaware. Each username/password issued will be used solely by the individual for whom it was issued and shall not be shared under any circumstances.
5.4 Subscriber is solely responsible for maintaining and updating usernames/passwords used to access File & Serve Delaware in accordance with applicable requirements set forth on the Site. Username/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 Delaware System.
5.5 Subscriber is solely responsible for the continuing accuracy of any and all information provided by Subscriber to File & ServeXpress in connection with the electronic transmission or delivery of any Document. Subscriber must notify File & ServeXpress 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 MAINTAIN ACCURATE AND CURRENT SUBSCRIBER OR USER INFORMATION ON THE SITE, MAY RESULT IN INCOMPLETE DELIVERY OF SERVICE DOCUMENTS UPON THEM, OR FAILURE TO RECEIVE SERVICE OF LEGAL DOCUMENTS.
5.6 Subscribers are solely responsible for checking the Site to determine if notification of Service has been provided, or that a Document it attempted to eFile has been rejected by a Court. SUBSCRIBERS ARE SOLELY RESPONSIBLE FOR MONITORING File & Serve Delaware, INCLUDING BUT NOT LIMITED TO, COMPLETED FILINGS AND EMAIL NOTIFICATIONS. FURTHER, IT IS THE SOLE RESPONSIBILITY OF SUBSCRIBERS TO DETERMINE IF A DOCUMENT MUST BE SERVED AS OPPOSED TO SIMPLY FILED.
5.7 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). File & ServeXpress 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), 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. File & ServeXpress is not responsible for changes to Court Rules or for notifying Subscriber of such changes.
5.9 Subscriber shall notify File & ServeXpress immediately if an eFiled Document is subsequently sealed by a Court and shall provide details in connection with such sealing which will enable File & ServeXpress to determine the action which should be taken in connection with the eFiled Document at issue (e.g., removal from public access in File & Serve Delaware).
5.10 Subscriber shall notify File & ServeXpress immediately if an eFiled or eServed Document is received for a case in which the Subscriber is not a party which will enable File & ServeXpress to determine the action which to be taken in connection with the eFiled or eServed Document.
6. MODIFICATION OF TERMS AND FILE & SERVE DELAWARE
6.1 File & ServeXpress 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. File & ServeXpress will notify Subscriber of any material change(s) in this Agreement and Usage Fees pertaining to eFile-Only Transactions and eFile and eServe Transactions, by posting the proposed change(s) on the Site for five days prior to the effective date of such change(s). File & ServeXpress also reserves the right to modify or discontinue features and capabilities of File & Serve Delaware, or any portion of File & Serve Delaware, without advance notice for normal maintenance and enhancements, and to modify or update the File & Serve Delaware 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 Delaware 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 discontinuance of Subscriber’s use of File & Serve Delaware.
7.1 Subscriber may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to File & ServeXpress. Upon termination by Subscriber, any and/or all obligations and duties owed by File & ServeXpress to Subscriber, if any, will end. File & ServeXpress may provide post-termination assistance to Subscriber and may assess upon Subscriber reasonable administrative fees and costs associated with such assistance.
7.2 File & ServeXpress may terminate this Agreement, without cause, upon thirty (30) days written notice to Subscriber. Additionally, in the event that Subscriber breaches any material term of the Agreement (including Court Rules) or if requested to do so by the Court, File & ServeXpress may terminate this Agreement immediately, if Subscriber has not cured such breach within five days after File & ServeXpress gives Subscriber written notice of such breach. Material breach includes (but is not limited to) any misuse of File & Serve Delaware, Subscriber’s insolvency, or any failure to make payments to File & ServeXpress. File & ServeXpress may also terminate a Subscriber’s account after an account remains inactive for six months. Terminated accounts may be deleted by File & ServeXpress. Users of a terminated Subscriber account will lose all access to the File & Serve Delaware System and will no longer have the ability to submit filings to the Court, serve documents through the File & Serve Delaware System or utilize any other features of File & Serve Delaware. A Subscriber may re-activate a terminated account by going through the online registration process at http://fileandservedelaware.com or by contacting File & ServeXpress Customer Support.
7.3 Upon termination of this Agreement, neither Subscriber nor its Users will have the ability to use File & Serve Delaware.
7.4 Subscriber is responsible for notifying a Court and other Subscribers to File & Serve Delaware of the termination of Subscriber’s access to File & Serve Delaware.
8.1 File & ServeXpress warrants that File & Serve Delaware is capable of performing the functions in conformance with the published File & Serve Delaware System documentation, 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 File & ServeXpress (in its sole discretion) will either, (a) redeliver or re-perform the File & Serve Delaware feature or function without charge, or (b) refund to Subscriber the fee paid by Subscriber for the File & Serve Delaware 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 DELAWARE IS SUBJECT TO LIMITATIONS, DELAYS AND PROBLEMS INHERENT WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS. NEITHER FILE & SERVEXPRESS NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS WARRANT THAT FILE & SERVE DELAWARE WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT FILE & SERVE DELAWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. NEITHER FILE & SERVEXPRESS NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION IN RECORDS AVAILABLE ON FILE & SERVE DELAWARE, 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 FILE & SERVEXPRESS 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 DELAWARE IS PROVIDED “AS IS WITH ALL FAULTS” AND ON AN “AS AVAILABLE” BASIS.
8.3 Subscriber represents and warrants that it will not provide File & ServeXpress 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 File & ServeXpress has no control over the content of a Document transmitted on or through File & Serve Delaware, and File & ServeXpress has no liability to Subscriber, Users, Subscriber’s clients, customers, or other third parties for any claim based upon (a) rejection of a Document by a Court, (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. File & ServeXpress 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 Delaware, 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 FILE & SERVEXPRESS NOR ITS SUPPLIERS, LICENSORS OR CONTRACTORS WILL BE RESPONSIBLE FOR, AND SUBSCRIBER WILL NOT SEEK TO HOLD FILE & SERVEXPRESS 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 Delaware; (b) any delays or delivery problems resulting from use of File & Serve Delaware; (c) the unavailability or interruption of File & Serve Delaware or any of its features; (d) your use of File & Serve Delaware (regardless of whether Subscriber received assistance, information or advice from the Site or any File & ServeXpress 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 Delaware (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 Delaware, except in the case of willful or reckless acts on the part of File & ServeXpress.
9.3 IN NO EVENT WILL FILE & SERVEXPRESS 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 FILE & SERVEXPRESS 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 FILE & SERVEXPRESS FOR THE PARTICULAR TRANSACTIONAL USE OF FILE & SERVE DELAWARE 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 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 Delaware. 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 Delaware. 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. File & ServeXpress reserves the right to delete infected Documents, files or programs, and File & ServeXpress shall have no liability to Subscriber, or the sender or intended recipient of infected materials for such action. Subscriber will notify File & ServeXpress immediately upon discovery of any infected data, software viruses, worms or other malicious agents submitted to File & Serve Delaware. File & ServeXpress shall have no liability with regard to any contamination of files or Documents Subscriber submits to the Court through File & Serve Delaware.
9.5 No claim, regardless of form, which in any way arises out of or relates to File & Serve Delaware or Subscriber’s use of or inability to use File & Serve Delaware, or the use of or inability to use Documents accessed through File & Serve Delaware, may be brought by Subscriber more than one year after the basis for the claim is discovered or should have been discovered by Subscriber.
9.6 Each third party supplier, licensor or contractor of File & ServeXpress 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 File & ServeXpress, 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 Delaware or the File & Serve Delaware System infringes any U.S. patent, copyright, trademark or trade secret of any third party; provided, that (a) Subscriber promptly notifies File & ServeXpress of the claim in writing; (b) use of File & Serve Delaware was in substantial compliance with this Agreement, (c) the infringement was not caused in whole or in part by any misuse or modification of File & Serve Delaware or the File & Serve Delaware System by Subscriber; (d) File & ServeXpress 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 File & ServeXpress 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 File & ServeXpress (including its affiliates, officers, directors and employees) from any claim or demand, including reasonable attorneys’ fees, made by any third party that File & Serve Delaware or the File & Serve Delaware System infringes any patents, copyrights, trademarks, trade secrets or any other intellectual property right of any third party based upon use of File & Serve Delaware or the File & Serve Delaware System not in compliance with this Agreement by Subscriber, including, but not limited to, any unauthorized use modifications to File & Serve Delaware or the File & Serve Delaware System 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 Delaware 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 Delaware. Subscriber shall comply with the license terms of any Third Party Software supplied in connection with File & Serve Delaware and that it will not or allow others to alter or modify any Third Party Software without express written permission from File & ServeXpress or the Third Party Software provider in each instance. File & ServeXpress has no obligation to maintain or upgrade any such Third Party Software.
12. 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.
13. 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 Delaware, 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 the prior written consent of File & ServeXpress. All notices required or permitted in this Agreement shall be in writing and shall be emailed, mailed, faxed, posted on the Site by File & ServeXpress 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.