Terms of Service

User Agreement and Terms & Conditions

 

USER AGREEMENT

The ClearanceRake.com website, herein identified as the Site, provides access to any ClearanceRake information service (“Service”). For the purposes of this agreement, the Service includes access to proprietary and non-proprietary databases, access to prepared search reports, use of investigative tools, order placement and retrieval services, and additional tools, products and services available on the Site.

A user is defined as any individual, company, law practice or other entity accessing any Service or other information at the Site. Investigative tools refer to features that permit a user to obtain additional information on specific records through the use of automated tools.

Use of any Service constitutes acceptance of this user agreement. Use may include, but is not limited to registration for a username and password, review of searches or database searching, use of any investigative tools available, use of features for ordering or retrieval of searches on the Site, and use of any other feature now in existence or hereafter provided. If you do not accept any portion of the user agreement, you should exit the Site without accessing, downloading, or utilizing any information from it.

LIMITATIONS AND INTELLECTUAL PROPERTY

All information accessed via the Service is governed by applicable intellectual property law, including copyright protection. Content is made available by ClearanceRake, via the law firm of Gallagher & Dawsey Co. LPA, and other providers, and all content is deemed the intellectual property of the provider. Content may only be used for internal purposes. Except as otherwise specifically provided herein, information retrieved from the Service via the Site cannot be duplicated, reproduced, distributed, or otherwise disseminated without the express written permission of ClearanceRake, via the law firm of Gallagher & Dawsey Co. LPA. Under no circumstances can any content retrieved from the Service be resold or repackaged. Limited reproduction is allowable within your additional organization. In addition, for those doing business primary in the practice of law, as an authorized attorney or agent of said attorney, limited reproduction is allowed to clients and other authorized attorneys if reproduction is connected with legal representation associated with reproduced work. However, limited reproduction is not allowed if recipient user is a company, partnership, or entity in the patent research business, or is employed directly or indirectly by any company in the patent business. Limited reproduction is also not allowed if the recipient of the reproduction produces any product or service that competes directly with a ClearanceRake product or service. For purposes of limited reproduction, all output must include an applicable copyright notice for ClearanceRake and Gallagher & Dawsey Co. LPA, and any other copyright notice added to the output by ClearanceRake. It is understood that ClearanceRake makes no claim of copyright ownership to any information in the public domain.

ClearanceRake expressly prohibits the user from downloading substantial portions of any proprietary or non-proprietary databases provided on the Site. In addition, any robotic or otherwise automated modes of query generation and record retrieval are expressly prohibited on the Site.

DISCLAIMER OF WARRANTIES AND LIABILITY; NO ATTORNEY-CLIENT PRIVILEGE

Any information retrieved from the Service is not to be construed as a legal opinion and use of the Service does not establish an attorney client relationship with Gallagher & Dawsey Co. LPA. The Service is intended as a tool for patent attorneys and nothing within the content of the Service is a legal opinion. It is the responsibility of the user to obtain necessary legal counsel on any information retrieved from the Service.

ClearanceRake and Gallagher & Dawsey Co. LPA have taken reasonable steps to ensure the accuracy of information presented to the user. ClearanceRake and Gallagher & Dawsey Co. LPA, and other partners, licensors, or information providers with information available at the Site expressly disclaim the accuracy, noninfringement, comprehensiveness, currency, or suitability of purpose of any of the information retrieved. In particular, the accuracy of data retrieved from the USPTO or other national patent offices and data retrieved from any third-party information source is disclaimed.

In regard to use of the filtering features of the Site, user understands that the use of categories, and the associated filtering, and the assignment of patents to certain categories is highly subjective and that the user is solely responsible for additional legal research or advice, which will be necessary, as well as review, interpretation and use of the particular results by the user and provided by the Service. User understands that the Service is limited to issued US patents.

As relates to queries written and records retrieved from any Service, user is solely responsible for the creation of queries and selection of results. ClearanceRake and Gallagher & Dawsey Co. LPA are not responsible for any errors in queries, any misinterpretation of information, or in assessment of returned results.

The Service may allow user to obtain additional information on referenced records through the use of investigative tools. ClearanceRake and Gallagher & Dawsey Co. LPA expressly disclaim the accuracy and comprehensiveness of any data retrieved through these links. Data retrieved from the USPTO, internet search engines, and foreign patent offices may be retrieved through third-party providers, and we cannot be liable for errors, omissions, or currency of the data presented. It is the sole responsibility of the user to determine if the information found, is, in fact, relevant to the project at hand. In addition, the failure of the investigative tools to retrieve specific information cannot be construed as proof that the information does not exist or is not retrievable. The user should always take reasonable steps to confirm information retrieved from the Service. Please note that if the user accesses any third party public website through investigative tools provided by ClearanceRake to the user for user’s convenience, the user must agree to the third-party’s user or access agreement posted on those sites. It is wholly the responsibility of the user to ensure compliance with all terms and conditions thereof.

The user understands and agrees that they are bound by any additional disclaimer of warranty included with any product or service provided by ClearanceRake and Gallagher & Dawsey Co. LPA. In particular, the user is bound by any disclaimer included with information retrieved from the Site.

CHARGES AND PAYMENT

User is responsible for any charges incurred while your account and password are being used. You agree to pay all fees invoiced (including applicable taxes) on account of your use of Services on the Site, within thirty (30) days of the invoice date. An invoice is generated and emailed to your billing contact within the first 5 days of the month for access to the Service for the next month, or service month. If payment is not received within the first 5 days of the service month access to the Service will be blocked until payment is received. ClearanceRake reserves the right to change any fee for any product or service offered on the Site at any time and upon at least thirty (30) days’ prior notice.

TERMINATION OF SERVICE

Your access to specific information, and specific to information accessed with your username and password, may be terminated at any time and for any reasonable cause by ClearanceRake. You may not assign your rights or obligations to any component of the Service to any other individual, law firm, company, or entity.

ACCEPTANCE OF CHANGES TO AGREEMENT

ClearanceRake and Gallagher & Dawsey Co. LPA reserve the right to change the user agreement at any time and without prior notice. Changes to the user agreement will be posted to the Site. By using the Site after any change in the user agreement is posted, you agree to be bound by any change to said agreement. You are encouraged to review the user agreement with regularity so as to be fully aware of any such change.

If any provision of this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect. This Agreement, all intellectual property issues, and your rights and obligations shall be governed by the laws of the United States of America and the State of Ohio governing contracts wholly entered into and wholly performed within the State of Ohio.

PRIVACY POLICY

Your right to privacy is a concern to us. At ClearanceRake we are helping you maintain control over your personal data while fostering the growth of a more interactive environment.

SUBSCRIPTION AND REGISTRATION

In a few areas on our Site, we ask you to provide information that will enable us to enhance your visit or follow up with you after your visit. We request information from you when you:

• Register on the Site.
• When you submit feedback on our Site.

In each of the instances above, we ask for your name, e-mail address, and other appropriate personal information that would be needed to register for or subscribe to these services or offers. Browser information from your computer may also be taken when you send in feedback to aid in resolving any technical issues.

The information you provide will be kept confidential and will be used only to support your customer relationship with ClearanceRake. When you provide your personal information such as name, address, phone number, and company name, ClearanceRake will not give or sell this information to any outside company for any use.

 

TERMS & CONDITIONS

 

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, SINCE YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS AND CREATES A BINDING LEGAL AGREEMENT. YOU MUST ACCEPT THESE TERMS IF YOU WISH TO USE THE SERVICES; NO CHANGES WILL BE ACCEPTED. WE MAY CHANGE, ADD OR REMOVE ANY PART OF THE AGREEMENT AT ANY TIME. SUCH CHANGES SHALL BE POSTED ON THE CLEARANCERAKE WEBSITE AT WWW.CLEARANCERAKE.COM. IF ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY SUCH CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THESE TERMS, AND OF ANY SUCH CHANGES.

 

INTRODUCTION.

The provision of the Services is subject to the terms and conditions set forth below (“Agreement”). You are referred to as “Customer” and Gallagher & Dawsey Co. LPA, on behalf of its ClearanceRake division is referred to as “ClearanceRake” in this Agreement. Customer and ClearanceRake are sometimes referred to herein individually as a “Party” or together as the “Parties”.

 

1. SERVICES

 

1.1 Services. ClearanceRake shall provide the services described in this Site to Customer in accordance with the terms of this Agreement, and as may be amended or modified from time to time as permitted hereunder (collectively, the “Services”). Services include access to the ClearanceRake.com website (the “Site” or “System”) which provides access to ClearanceRake’s information services, proprietary and non-proprietary databases, investigative tools (automated tools used to obtain additional information on specific records) and additional tools, products and services available on the Site (collectively, “ClearanceRake Products”). The provision of the Services is further subject to the terms and conditions of the above User Agreement and such terms and conditions are hereby incorporated into and made a part of this Agreement.

 

1.2 Accuracy of Information; Customer Obligations; No Legal Opinions or Attorney Client Relationship; Evaluation of Customer’s Patents; Some Patents are Included without Evaluation; Update Frequency. Customer acknowledges and agrees that the performance of the Services depends solely on the Customer’s use of the Service and interpretation of the results. Customer acknowledges and agrees that the information provided by ClearanceRake is not a legal opinion, merely information that the Customer must verify, interpret, and form their own conclusions. Customer acknowledges and agrees that use of the Service does not form an attorney-client relationship and accepts that Customer’s own patents will be included in the ClearanceRake database and Customer may not have access to the evaluation of Customer’s patents. If Customer does have access to the evaluation of Customer’s patents, Customer agrees not to attempt to persuade or lobby ClearanceRake to change the evaluation of Customer’s patents. Customer acknowledges, agrees, and accepts that some patents will be included in the Service without any evaluation in the event that Gallagher & Dawsey Co. LPA participated in the drafting or prosecution of the patent. Customer is solely responsible for the creation of queries and selection and evaluation of results. ClearanceRake is not responsible for any errors in queries, any misinterpretation of query or field parameters, or in assessment of returned results. Customer acknowledges, agrees, and accepts that ClearanceRake categories are subjectively determined, based upon years of experience, to aid Customer in filtering results and that it may take Customer significant trial and error to familiarize themselves with the categories and the most effective and/or comprehensive use of the Service. The Service is intended for use by patent practioners skilled in the clearance process and capable of forming their own legal opinions based upon the Services and Customer’s own independent research. Thus, Customer acknowledges and agrees that the Service is limited to United States patents and is only a starting point in the clearance process and Customer is ultimately responsible for verifying the information provided by the Service and performing their own independent clearance search of all patent records. Customer acknowledges and agrees that the Service does not include all patents that may be relevant to the clearance process. While the Service has made the best efforts to include U.S. patents that issued in 2015 and later that are relevant to the golf club head clearance process, there may be patents that are unusually categorized in the patent records and are not included in the Service but remain relevant to the golf club head clearance process, examples of such patents include, but are not limited to, manufacturing methods, material compositions, coatings, balance points, shafts, and grips. The Service intends to include patents within 2 weeks of issuance but does not guarantee the update frequency. Customer represents and warrants that its use of any information provided in connection with this Agreement shall in all cases comply with all applicable federal, state and local laws and regulations.

 

2. THE TERM.

This Agreement shall be effective until terminated in accordance with the terms herein and such term of the Agreement shall be referred to herein as the “Term.” Customer agrees to pay all fees invoiced (including applicable taxes) on account of use of the Services, within thirty (30) days of the invoice date. An invoice is generated and emailed to Customer’s billing contact within the first 5 days of the month for access to the Service for the next month, or service month. If payment is not received within the first 5 days of the service month access to the Service will be blocked until payment is received. ClearanceRake reserves the right to change any fee for any product or service offered on the Site at any time and upon at least thirty (30) days’ prior notice. Upon expiration or termination of the Term triggered by non-payment of an invoice, Customer shall cease using all information gathered from the Service.

3. TERMINATION

 

3.1 Termination for Cause. Either party may terminate this Agreement by written notice to the other party if (i) such other party fails to perform any material obligation (including, with respect to Customer, the payment of amounts owed hereunder) and such failure continues for 30 days after the breaching party receives written notice from the other party, or (ii) a bankruptcy related event occurs with respect to such other party.

 

3.2 Termination for Convenience. Either party may terminate this Agreement at any time, without cause, upon 60 days prior written notice to the other party.

 

3.3 Effect of Termination. In the event of any such terminations, the following shall apply:

3.3.1 Customer will pay ClearanceRake all Fees and charges for Services provided under this Agreement to Customer up through the date of termination;

3.3.2 All rights granted to Customer under this Agreement by ClearanceRake will be terminated and Customer’s access to the Services will cease; and

3.3.3 Each Party shall return or destroy the Confidential Information of the other Party in its possession; provided, however, neither Party shall be required to return or destroy copies of any Confidential Information which have been created pursuant to any automatic archiving, back-up or disaster recovery procedures (including backup tapes), provided, further that such Confidential Information shall be kept confidential in accordance with Section 6 below.

 

4. FEES AND PAYMENT TERMS.

Customer agrees to pay all fees invoiced (including applicable taxes) on account of use of the Services, within thirty (30) days of the invoice date. An invoice is generated and emailed to Customer’s billing contact within the first 5 days of the month for access to the Service for the next month, or service month. If payment is not received within the first 5 days of the service month access to the Service will be blocked until payment is received. ClearanceRake reserves the right to change any fee for any product or service offered on the Site at any time and upon at least thirty (30) days’ prior notice.

 

5. TAXES.

Unless otherwise provided in the Agreement, Customer shall pay all sales, consumer, use and similar taxes in connection with the Services, provided, however, Customer shall not be responsible for the payment of any taxes on ClearanceRake’s net income.

 

6. CONFIDENTIAL INFORMATION AND TRADE SECRETS

 

6.1 Confidential Information. “Confidential Information” includes all trade secrets, processes, proprietary data, pricing, technology and product information, business and any other proprietary or confidential information provided by the disclosing Party to the receiving Party in connection with this Agreement, but excludes any information which: (a) is generally available to the public through no fault of the receiving Party or any of its Subsidiaries, other Affiliates, directors, officers, employees, contractors, subcontractors, or other agents (collectively, a Party’s “Representatives”); (c) is or becomes available to the receiving Party through a source other than the disclosing Party or its Representatives that is not known or reasonably believed to have any legal, contractual or fiduciary duty of confidentiality; or (d) is or has been developed by the receiving Party independently of the disclosing Party or any of its Representatives and their respective Confidential Information.

 

6.2 Treatment of Confidential Information. Each Party covenants and agrees that it will keep and maintain all Confidential Information of the other Party in strict confidence, using such

degree of care as is appropriate and reasonable to avoid unauthorized use or disclosure, it will not disclose the other Party’s Confidential Information to any third party (other than its Representatives), except with disclosing Party’s prior written consent and it will use and disclose Confidential Information of the other Party solely for the purposes set forth in this Agreement. The receiving Party may only disclose Confidential Information of the other Party to its Representatives with a need to know such Confidential Information and who are subject to confidentiality and non-use obligations substantially similar to those imposed by this Agreement. The receiving Party is responsible for the compliance by its Representatives with the terms of this Agreement and shall also be responsible for any improper use or disclosure of any Confidential Information of the other Party by such Representatives. Notwithstanding the foregoing, under no circumstances may Customer disclose Confidential Information of ClearanceRake to any competitor of ClearanceRake. In the event either Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other party, the receiving Party shall promptly notify the other Party and cooperate with such other Party, at its cost and expense, in such other Party’s efforts to avoid, limit the required disclosure of or otherwise request confidential treatment for any such Confidential Information. Unless the demand shall have been timely limited, quashed or extended, then notwithstanding the confidentiality terms in this Section 6, the receiving Party shall be entitled to comply with such demand as, when and to the extent required or permitted by law; provided the receiving Party shall only provide such Confidential Information as is required to be disclosed.

 

7. OWNERSHIP RIGHTS.

All ownership and intellectual property rights in the Services, ClearanceRake Products (including related tutorials and documentation) provided or made available to Customer by ClearanceRake as a part of the Services (including all improvements, enhancements, modifications or updates), and any and all information and data made available to Customer as part of the Services shall remain the exclusive, sole and absolute property of ClearanceRake. Intellectual property created by ClearanceRake pursuant to this Agreement shall be owned by ClearanceRake. Customer shall have a personal, non-transferable, non-exclusive, right to access and use the ClearanceRake Products in connection with the Services solely for the internal business purposes of Customer during the Term. Customer shall not permit any third party to use the Services or ClearanceRake Products in any way whatsoever without the prior written consent of ClearanceRake. Except as otherwise specifically provided herein, information retrieved from the Service via the Site cannot be duplicated, reproduced, distributed, or otherwise disseminated to any third party without the express written permission of ClearanceRake, except that Customer may provide information retrieved from the Service to Customer’s client and such client’s advisors and consultants, to use on behalf of such client that has requested such search or information. Under no circumstances can (i) any content retrieved from the Services be resold or repackaged by Customer, (ii) Customer use the information as a factor in establishing an individual’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, or employment, or (iii) the information be used to engage in unfair or deceptive practices. ClearanceRake expressly prohibits Customer from downloading any portions of any proprietary or non-proprietary databases provided on the Site. In addition, any robotic or otherwise automated modes of query generation and record retrieval are expressly prohibited on the Site. Customer further acknowledges that the data and information provided through the Service, regardless of form or format, is proprietary to ClearanceRake and comprises: (a) works of original authorship, including compiled information containing ClearanceRake’s selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled; (b) confidential and trade secret information; and (c) information that has been created, developed and maintained by ClearanceRake at great expense of time and money. Customer agrees that Customer will not commit or permit any act or omission by Customer’s agents, employees or any third party that would impair ClearanceRake’s copyright or other proprietary and intellectual property rights in the information. Customer agrees to notify ClearanceRake immediately upon obtaining any information regarding an actual infringement of ClearanceRake rights. Customer also agrees that Customer will not use ClearanceRake trade name, trademark, service mark, logo or copyrighted materials in listings or advertising in any manner without the prior written approval of ClearanceRake. Customer shall reproduce any applicable copyright notice and proprietary rights legend on all authorized copies of such information.

 

8. DISCLAIMERS.

 

8.1 DISCLAIMER OF WARRANTIES. CLEARANCERAKE AND ITS THIRD-PARTY LICENSORS PROVIDE THE SERVICES AND ANY RELATED DOCUMENTATION, SOFTWARE, DATA, INFORMATION, OR EQUIPMENT ON AN “AS IS” AND AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED. CLEARANCERAKE AND ITS THIRD-PARTY LICENSORS DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF QUALITY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CLEARANCERAKE FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO CUSTOMER OR TO ANY THIRD PARTY. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND CLEARANCERAKE SHALL HAVE NO LIABILITY THEREFOR. NO EMPLOYEE, AGENT, LICENSOR OR THIRD PARTY PROVIDER OF CLEARANCERAKE OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. CUSTOMER ALSO ACKNOWLEDGES THAT EVERY BUSINESS DECISION INVOLVES THE ASSUMPTION OF A RISK AND THAT CLEARANCERAKE AND ITS THIRD-PARTY LICENSORS, IN FURNISHING THE INFORMATION TO CUSTOMER, DOES NOT AND WILL NOT UNDERWRITE THAT RISK, IN ANY MANNER WHATSOEVER. CUSTOMER THEREFORE AGREES THAT CLEARANCERAKE AND ITS THIRD-PARTY LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS,

DAMAGE OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY CLEARANCERAKE’S OR ITS THIRD-PARTY LICENSOR’S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE INFORMATION TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT.

 

8.2 No Legal or Professional Advice. Any information retrieved from the Service is not to be construed as a legal opinion. ClearanceRake does not issue legal opinions and is not engaged in rendering legal or other professional services. It is the responsibility of Customer to obtain necessary legal counsel on any information retrieved from the Service.

 

8.3 Third Party Databases. Because ClearanceRake cannot independently verify the accuracy of the information maintained by the responsible government agency (including the USPTO or other national trademark and patent offices) or any other third party information sources of this data, we make no guaranties, representations or warranties as to the accuracy or completeness of contents or results of the Services and expressly disclaim the accuracy, comprehensiveness, currency, or suitability of purpose of any of the information retrieved from the system or Services. ClearanceRake cannot and does not accept any liability for errors or omissions in the information provided by third party information providers, nor does ClearanceRake accept any liability with respect to the disclosure or User’s use of information or records that may contain personally identifiable information.

 

8.4 Data Retrieved Using Investigative Tools. Customer may be able to obtain additional information on referenced records through the use of investigative tools included in the Services. ClearanceRake expressly disclaims the accuracy and comprehensiveness of any data retrieved through these links. Data retrieved from the USPTO and internet search engines is retrieved through third-party providers, and ClearanceRake cannot be liable for errors, omissions, or currency of the data presented. It is the sole responsibility of Customer to determine if the information found, is, in fact, relevant to the associated clearance project. In addition, the failure of the investigative tools to retrieve specific information cannot be construed as proof that the information does not exist or is not retrievable. Customer should always take reasonable steps to confirm information retrieved from the Service. If Customer accesses any third party public website through investigative tools provided by ClearanceRake to Customer for Customer’s convenience, Customer must agree to the third-party’s user or access agreement posted on those sites. It is wholly the responsibility of Customer to ensure compliance with all terms and conditions thereof. Customer understands and agrees that they are bound by any additional disclaimer of warranty included with any product or service provided by ClearanceRake. In particular, Customer is bound by any disclaimer included with a search report retrieved from the Site.

 

9. INDEMNIFICATION.

Customer agrees to be responsible for and indemnify, defend, and hold harmless ClearanceRake and any subsidiaries, Affiliates, third-party licensors, and directors or employees of ClearanceRake, from and against any and all claims, loss, damages, expense, liability or judgment (including reasonable attorneys’ fees, costs and settlements) based upon or arising out of: (a) any acts or omissions by Customer or any Customer Representative that involve fraud, willful misconduct and/or criminal acts or omissions, whether or not such acts or omissions relate to the Services; (b) any breach of this Agreement by Customer, any Customer Representative, or any Customer client, (c) inaccurate information submitted by Customer; or (d) use of the information by individuals or entities that have not been authorized by this Agreement to have access to and/or use the information that have received access to or used such information directly due to an act or omission by Customer.

 

10. LIMITATION OF REMEDIES/DAMAGES.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY HERETO, NOR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, OR THIRD-PARTY LICENSORS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, BUSINESS OR DATA), REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR ANY OTHER LEGAL THEORY) AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LOSSES OR DAMAGES. CLEARANCERAKE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE ACTS OR OMISSIONS OF THE THIRD PARTY PROVIDER PERFORMING THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CLEARANCERAKE AND ITS THIRD-PARTY LICENSOR’S TOTAL, AGGREGATE LIABILITY WITH RESPECT TO THE PROVISION OF SERVICES HEREUNDER, IF ANY, FOR ANY AND ALL LOSSES, DAMAGES OR INJURIES WHICH CUSTOMER SUFFERS OR INCURS ARISING OUT OF ANY ACTS OR OMISSIONS OF CLEARANCERAKE AND/OR ITS THIRD-PARTY LICENSORS IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED HEREUNDER, REGARDLESS OF THE CAUSE OF THE LOSS, DAMAGE OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE LESSER OF (i) THE FEE PAID BY CUSTOMER TO CLEARANCERAKE FOR THE AFFECTED SUBMISSION IN QUESTION OR (ii) $10,000, AND CUSTOMER COVENANTS AND PROMISES THAT CUSTOMER WILL NOT SUE CLEARANCERAKE OR ANY OF ITS THIRD-PARTY LICENSORS FOR A GREATER AMOUNT. CUSTOMER ALSO AGREES TO GIVE CLEARANCERAKE IMMEDIATE WRITTEN NOTICE OF ALL ACTIONS, CLAIMS, LOSSES OR DAMAGES ARISING OUT OF THE USE OF THE INFORMATION.

 

11. INJUNCTIVE RELIEF.

In the event either Party reasonably concludes that an actual or impending breach of Section 6 or Section 7 exists, such non-breaching Party, in addition to any remedy available at law, will be entitled to seek equitable relief, including injunctive relief.

 

12. ASSIGNMENT.

This Agreement is not assignable by either Party without the prior written consent of the other which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary in this Agreement, either party may assign this Agreement in whole or in part and/or any of its rights, licenses, duties and/or obligations hereunder, upon written notice to the other party and without the other party’s consent, to any of its parent companies, or to any of its and/or their Affiliates, subsidiaries and business divisions, or in connection with a reorganization, demutualization or change of control of a party, a business unit, division or line of business; provided that any such assignment shall not release the assigning party from its obligations under this Agreement. This Agreement is binding upon the Parties’ respective successors and permitted assigns.

 

13. COMMUNICATIONS.

All notice requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given: (a) on the date of service if served personally on the party hereto to whom notice is to be given; (b) on the day after delivery to Federal Express or similar overnight carrier or the Express Mail Service maintained by the United States Postal Service; or (c) on the fifth day after mailing, if mailed to the party to whom such notice is to be given, by first class mail, registered or certified, postage prepaid and properly addressed, to the Party as follows: (i) if to ClearanceRake, Gallagher & Dawsey Co. LPA, Attention: ClearanceRake, and (ii) if to Customer, at the address provided by Customer to ClearanceRake. Any Party hereto may change its address for the purpose of this Section by giving the other party written notice of its new address in the manner set forth above.

 

14. SURVIVAL; SECTION HEADINGS.

All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, indemnification and limitation of liability shall survive the completion of the Services or any earlier termination, expiration or rescission of this Agreement. The section headings are used in this Agreement for reference and convenience only and do not affect this Agreement’s construction or interpretation.

 

15. PUBLICITY.

Neither Party shall use the name, trademark, service mark, trade name, logo or other commercial or product designations of the other Party in any way, in print or electronic format or on a web or internet site, without the prior written consent of the other Party in each instance; unless it relates directly to the provision of Services hereunder.

 

16. APPLICABLE LAW; FORUM; WAIVER OF TRIAL BY JURY.

The laws of the Ohio govern all matters arising under or relating to this Agreement and all of the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance and enforcement, excluding any laws of such state which would render the selection of Ohio law ineffective. The parties further agree that the Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the courts of the State of Ohio sitting in Columbus. Each Party waives, to the fullest extent permitted by law, (a) any objection which it may now or later have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in such Columbus courts; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

17. SEVERABILITY.

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision is to that extent deemed omitted, and the balance of the Agreement remains in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable.

 

18. AMENDMENTS; WAIVER.

No amendment or modifications to this Agreement shall be valid or enforceable unless in writing executed by the authorized representatives of Customer and ClearanceRake. A Party may not waive a right or remedy except pursuant to a writing executed by such party. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition.

 

19. FORCE MAJEURE.

Neither Party shall be liable for failure or delay in the performance of its obligations hereunder when such failures or delay is caused by events or causes beyond the control of such Party, including, without limitation, any of the following events, acts of God, extreme weather, natural calamities, labor strikes or unrest, terrorist attacks, government actions, power outages and disruptions in communication lines.

 

20. NO THIRD PARTY BENEFICIARIES.

Nothing in this Agreement creates or will be deemed to create, third party beneficiaries of or under this Agreement.

 

21. SUBCONTRACTING.

ClearanceRake reserves the right to subcontract any or all of the Services, provided that ClearanceRake remains fully responsible under this Agreement for the performance of any such subcontractor.

 

22. INDEPENDENT CONTRACTOR STATUS.

Each party to this Agreement hereby agrees, and represents and warrants that it is an independent contractor and is not the other party’s agent or employee or partner or joint venture for any purpose whatsoever.

 

23. ENTIRE AGREEMENT.

This Agreement, together with the exhibits, schedules, and attachments and all terms and conditions incorporated by reference, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements between the parties in connection with the subject matter hereof except as set forth in this Agreement. Neither Party shall be bound nor liable to the other Party for any representation, warranty, promise, covenant or understanding made by any agent, employee or other person that is not embodied or incorporated by reference in this Agreement.