In order to perform document review services assigned by Xcellence, Inc. d/b/a Xact Data Discovery (“XDD”), a reviewer consultant (“Reviewer”) will need to download the Esquify® Virtual eDicovery Reviewer Community – VERC Reviewer Application (“VERC APP”). Your download or use of XDD software or hardware products (including the VERC APP) (collectively, the “Products”) is based on the software license and other terms and conditions in effect for the specific Product at the time you download or use the Product. All users must agree to the terms set forth in this Agreement, including all agreements incorporated herein by reference, before installing or using the Product. Please be aware that the software license that accompanies the Product at the time of download may differ from the present version of the license. The term “You,” “you,” “User,” or “user”” refers to each individual user and viewer of our website (including accessing the VERC APP) and, if applicable to your use, your employer or firm.
By installing or using the VERC APP, you will be legally bound to this agreement (the “Agreement”) between you and XDD (“We,” “Our” or “Us”) regarding your access to and use of the Products. Read this Agreement and the applicable terms carefully before you install or use the VERC APP. If you accept this Agreement for an entity, you represent that you have the authority to bind the entity to this Agreement. If you do not agree to this Agreement, please click “Decline” or “Back” and do not install or use the Product.
If you are under 18, or if you are considered a minor in your state or country, you must obtain the consent of your parent or legal guardian to register for, download or and use the Products. You represent that you are legally able to bind yourself to this Agreement and are (a) an attorney, duly authorized to practice law and in good standing or (b) a paralegal and will expressly identify yourself as such to XDD and will provide further information to XDD regarding your qualifications, as requested.
License and Restrictions
The VERC APP is designed to track, monitor and evaluate the Reviewer’s document review work product, status and results. For those purposes, XDD hereby grants to Reviewer a limited, personal, non-exclusive, non-transferable, non-sublicensable license to install and use the Product in accordance with the terms of this Agreement. Reviewer may not use the Product for anything other than as intended by XDD, and in conjunction with Reviewer’s lawful use of the Product. Reviewer may not use the Product in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. All rights not expressly granted by XDD are hereby reserved. Reviewer agrees not to take any action to interfere with XDD’s ownership of or rights in the Product. Reviewer agrees that, unless otherwise expressly permitted in this license, Reviewer will not: (i) reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit the Product (or any portion thereof); (ii) to the extent permitted under applicable law, redistribute, encumber, sell, rent, lease, loan, sublicense, assign, or otherwise transfer rights to the Product; (iii) modify or create any derivative works based on the Product, including customization, translation, or localization; (iv) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any software or files, or parts thereof, included as part of the Product; (v) except to the extent expressly permitted by law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Product, or in any way ascertain, decipher, or obtain the communications protocols for accessing the Product, or the underlying ideas or algorithms of the Product (e.g., in an effort to develop other applications or services that provide similar or substitute or complimentary functionality to the Product); (vi) create or use any Product other than as authorized by XDD to access the Product; (vii) attempt to gain unauthorized access to the Product or to any account, application, platform, computer system or network associated with the Product; (viii) use the Product in any way that violates this Agreement, or any other agreements to which Reviewer is a party, or any law; (ix) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product or associated with the Products; (x) circumvent, or attempt to circumvent, the function or purpose of the Product; and (xi) use the Product to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. Any attempt to do so is a violation of the rights of XDD and any licensors of the Product.
XDD and its licensors reserve the right to change, suspend, remove, or disable access to any Products at any time without notice. It is the reviewer’s responsibility to always have the most up to date VERC APP. In no event will XDD be liable for the removal of or disabling of access to any such Products. XDD may also impose limits on the use of or access to certain Products, in any case and without notice or liability.
Consent to Use and Storage of Data
The VERC APP allows XDD to virtually supervise Reviewer’s document review by collecting information about Reviewer’s use of Reviewer’s computer while performing Review services, including, without limitation, monitoring, tracking, and evaluating Reviewer’s performance. For instance, when the VERC APP is open (and not paused) XDD may have access to visually monitor, record and or collect visual and non-visual data from the Reviewer’s computer. The information collected through the virtual supervision will be used to monitor Reviewer’s progress during a Review engagement, evaluate and analyze Reviewer’s performance and compliance with this Agreement and any engagement agreement entered into by Reviewer in connection with a specific document review assignment (including, as an example only, corroborating reviewer’s number of hours), and to compile data for general analysis, including, among other uses, to analyze Reviewers’ performances, process payment, aggregate case analytics and improve XDD’s products and services. Reviewer consents to such virtual supervision, and Reviewer agrees that XDD and its agents may collect, maintain, process and use information obtained through the virtual supervision, including but not limited to all data, unique system or hardware identifiers, information about your computer, system and application software, and peripherals, that is gathered. XDD may, but is not required to, store and use this information indefinitely for purposes other than virtual supervision, in its sole discretion, as long as such use does not personally identify you.
Reviewer may pause the VERC APP at any time Reviewer is not actively reviewing documents, which will inhibit XDD’s ability to monitor or retrieve data (other than pause time) from Reviewer’s computer. Reviewer acknowledges and agrees that compensation payment is calculated based on time spent on review tasks not solely based on log-in time, and any dispute regarding the number of review tasks hours may result in delayed payment. Following an inquiry into the review tasks hours and XDD review, all payment dispute decisions are final.
Third Party Materials
Certain Products may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Products, you acknowledge and agree that XDD is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. XDD, its officers, directors, agents, representatives and affiliates do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Products, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. You agree that you will not use any Third Party Materials in a manner that would infringe or violate the rights of any other party, and that XDD is not in any way responsible for any such use by you.
This Agreement is effective until terminated. Your rights under this Agreement will terminate automatically without notice from XDD if you fail to comply with any term(s) of this Agreement. Upon the termination of this Agreement, you must cease all use of the Products and destroy all copies, full or partial, of the Products. Sections 2, 3, 4, 5, 6, and 7 of this Agreement shall survive any such termination.
REPRESENTATIONS AND WARRANTIES/LIMITATION ON LIABILITY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE PRODUCTS AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE PRODUCTS IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND XDD AND XDD’S LICENSORS (COLLECTIVELY REFERRED TO AS “XDD” FOR THE PURPOSES OF SECTION 5) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE. XDD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCTS, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY PRODUCTS WILL CONTINUE TO BE MADE AVAILABLE, THAT THE PRODUCTS WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY PRODUCTS, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. INSTALLATION OF THE PRODUCT MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY PRODUCTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY XDD OR AN XDD AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE PRODUCTS PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL XDD BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCTS OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF XDD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall XDD’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one dollar ($1.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Controlling Law and Severability
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of law principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
Complete Agreement; Governing Language
Third Party Notices
Portions of the Product may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material, if any, are contained in the electronic documentation for the Product, and your use of such material is governed by their respective terms.
If you have any questions regarding this Agreement, please contact us by e-mail at email@example.com.
Copyright 2019 © XDD
All rights reserved.
Last Updated March 7, 2019
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