Last Updated: March 26, 2024
1. YOUR ACCEPTANCE OF TERMS.
1.1. Acceptance. These RPX Empower Terms of Service (these “Terms“) INCLUDING THE BINDING ARBITRATION PROVISION CONTAINED IN SUBSECTION 14.4 sets forth the terms and conditions pursuant to which Subscriber and its Users may use the Service (as defined below) provided by RPX Corporation (“RPX“). Subscriber must agree to these Terms before Subscriber and its Users can use the Service, and Subscriber’s or its Users’ use of the Service will indicate Subscriber’s consent to these Terms. If Subscriber does not agree to any of the following terms of these Terms, Subscriber and its Users may not use the Service. If you received a User ID with access to the Service or otherwise access the Service on behalf of a company or other organization, you are accepting these Terms on behalf of yourself and the company or other organization for which RPX authorized your access to the Service, and any reference to “Subscriber” in these Terms shall be deemed a reference to such company or other organization. If you are an individual accessing the Service for your own purposes, you shall be deemed a “Subscriber” and “User” under these Terms.
1.2. Agreement. These Terms when taken together with any order form that has been accepted in writing by RPX, and all documents incorporated by specific reference herein or therein (upon acceptance by RPX, an “Order Form”), constitute the complete and exclusive statement of the terms of the agreement governing the provision of RPX Empower by RPX to Subscriber (collectively, the “Agreement”). Absent any Order Form, the Agreement shall be deemed a reference to these Terms and all documents incorporated by specific reference herein.
1.3. Privacy Policy. Subscriber understands that by using the Service, Subscriber consents and agrees to the collection and use of certain information about Subscriber and its Users and its and their use of the Service in accordance with RPX’s Privacy Policy (“Privacy Policy”), available at https://www.rpxcorp.com/rpx-privacy-policy/ or such successor website provided by RPX, which is hereby incorporated into and made a part of these Terms. If Subscriber objects to its information being used in this way, please do not use the Service. RPX, in its sole discretion, may update the Privacy Policy at any time with or without notice to Subscriber as outlined in the Privacy Policy. Any reference to “you” or “your” in the Privacy Policy shall be deemed a reference to “Subscriber and/or its Users”. Any reference to “we” in the Privacy Policy shall be deemed a reference to “RPX”.
1.4. Legal Authority. To use or register for the Service, you (a) must be of legal age to form a binding contract with RPX; (b) cannot be a person or entity barred from receiving the Service under the laws of the United States or other applicable jurisdiction, including the country in which Subscriber resides, is incorporated, or from which Subscriber uses the Service; and (c) have all full power and authority to enter into on behalf of and bind Subscriber if you received a User ID with access to the Service or otherwise access the Service on behalf of Subscriber. By using the Service, you represent and warrant that you understand and agree to the foregoing.
1.5. Changes to Terms. RPX may update or change these Terms from time to time and recommends that Subscriber review these Terms on a regular basis. Subscriber can review the most current version of the Terms at any time at https://empower.rpxcorp.com/company/terms_of_service. If RPX makes a change to these Terms, RPX will post the updated RPX Empower Terms of Service. Subscriber and its Users understand and agree that its and their continued use of the Service after these Terms have changed constitutes its and their acceptance of the Terms as revised.
2. DEFINITIONS.
2.1. “Content” means any information that may be viewed, accessed, downloaded, uploaded, posted, generated or submitted through the Service, such as data files, written text, graphics, images, sounds, videos, messages and any other like materials, including any information derived from any of the foregoing.
2.2. “Empower Dashboard” means a dashboard providing a summary view of Subscriber’s patents and RPX Empower activities.
2.3. “Empower License Manager” means RPX’s proprietary software-as-a-service product related to management of Subscriber’s inbound and/or outbound patent licenses, which may include such features and functions as described at https://empower.rpxcorp.com/license_manager or such successor website provided by RPX.
2.4. “Empower Litigation Defense” means RPX’s proprietary software-as-a-service product related to litigation monitoring and analysis (including sector-based analysis), and law firm-related information, which may include such features and functions as described at https://empower.rpxcorp.com/litigation_defense or such successor website provided by RPX.
2.5. “Empower Patent Analytics” means RPX’s proprietary software-as-a-service product related to the categorization, analysis, rating and comparison of patents and patent portfolios, which may include such features and functions as described at https://empower.rpxcorp.com/patent_analytics or such successor website provided by RPX.
2.6. “General Subscriber Content” means all content that Subscriber or its User posts or uploads to the Service other than Private Subscriber Content.
2.7. “Outside Adviser User” means an attorney or other third party advisor who acts as outside counsel or outside adviser in patent-related matters for Subscriber, each as authorized by Subscriber to use the Service on Subscriber’s behalf solely for the benefit of Subscriber and further authorized by RPX for such use.
2.8. “Private Subscriber Content” means all content that Subscriber or its User posts or uploads to the Service that is confidential or proprietary to Subscriber, such as patent rating or scoring information or the terms or existence of a patent license agreement between Subscriber and a third party, except Private Subscriber Content shall not include any information that is (a) is now available or becomes available to the public without breach of the Agreement by RPX; (b) is lawfully obtained from a third party without a duty of confidentiality; (c) is known to RPX prior to such disclosure; or (d) is, at any time, developed by RPX independent of any such disclosure(s).
2.9. “RPX Content” means any Content that is provided to Subscriber and/or its Users by RPX through the Service.
2.10. “RPX Empower” means as determined by RPX, or as set forth in an Order Form, (a) Empower Patent Analytics, (b) Empower Litigation Defense, (c) Empower Dashboard, (d) Empower License Manager, (e) RPX Insight, and/or (e) such other RPX software-as-a-service product(s) (or any applicable portion of any of the foregoing) provided by RPX in its sole discretion.
2.11. “RPX Insight” means RPX’s proprietary software-as-a-service product related to patent litigation monitoring and analysis, which may include such features and functions, as described at https://insight.rpxcorp.com or such successor website provided by RPX.
2.12. “Service” means RPX’s proprietary RPX Empower software-as-a-service product(s) as specified in the applicable Order Form (or where there is no Order Form, as provided by RPX to Subscriber in its sole discretion, which may include such features and functions, as described at https://empower.rpxcorp.com/ or such successor website provided by RPX), accessible through the Internet.
2.13. “Subscriber Content” means Private Subscriber Content and General Subscriber Content.
2.14. “Subscriber User” means an employee of Subscriber as authorized by Subscriber to use the Service on Subscriber’s behalf solely for the benefit of Subscriber.
2.15. “User” means Subscriber User or RPX and Subscriber authorized Outside Adviser User.
3. SERVICE.
3.1. Access to the Service. Any right for Subscriber (and its Users) to access the Service shall be as set forth in the applicable Order Form. In the absence of an Order Form, RPX in its sole discretion may make accessible to the Subscriber and its Users, subject to the terms and conditions set forth herein, during the term of these Terms and on a limited, non-exclusive, non-transferable, and non-sublicensable basis, within the jurisdiction as determined by RPX, and solely for its intended purpose and Subscriber’s internal business use, the Service, or portions thereof, as determined by RPX. Any breach by a User will be deemed to be a breach by Subscriber. RPX may, in its sole discretion or at the request of Subscriber, at any time terminate a User’s ability to access the Service.
3.2. Changes to the Service. RPX reserves the right to modify or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to Subscriber. Without limiting the foregoing, RPX may post on the Service notice of such changes to the Service. It is Subscriber’s responsibility to review the Service for any such notices. Subscriber agrees that RPX shall not be liable to Subscriber (including its Users) or any third party for any modification or cessation of the Service, in whole or in part.
3.3. Limitations on Use.
(a) Subscriber agrees it will, and will ensure that its Users, use the Service only for purposes as permitted by these Terms and in accordance with any applicable law, regulation, or generally accepted practice in the applicable jurisdiction.
(b) Subscriber agrees that it will not, and will ensure that its Users do not:
(i) Sell, resell, rent, lease, or trade the Service (including, without limitation, the RPX Content or any part thereof) for any purpose or distribute it over any other medium, including over any computer network or hyperlink framing;
(ii) Alter, obscure, or remove any copyright, trademark, or any other notices that may be affixed to or contained within the Service or that are otherwise provided to Subscriber and its Users in connection with the Service (including any RPX Content);
(iii) Use, copy, or distribute any part of the Service (including any RPX Content) to bring or to enable another to bring any claim of patent infringement against RPX, and hereby waive(s) its rights to use any part of the Service (including any RPX Content) as evidence of patent infringement by RPX;
(iv) Use, transfer, distribute, or dispose of any information contained in the Service (including any RPX Content), in any manner that could compete with the Service;
(v) Use any device or software to damage or interfere with the Service or networks connected to the Service;
(vi) Use any automatic or manual device or process to harvest or compile information from the Service (including any RPX Content);
(vii) Copy, reproduce, modify, attempt to change, create derivative works, reverse engineer, decompile, recompile, disassemble, publish, display, perform, upload to, transmit, disseminate, delete, hack, or in any way exploit any part of the Service (including any RPX Content), including the source code upon which the Service is based, except as expressly permitted in the Agreement or with the express prior written consent of RPX;
(viii) Recirculate, redistribute, or publish the analysis and presentation included in the Service outside of Subscriber’s organization without RPX’s prior written consent;
(ix) Use the Service and the information contained therein (including any RPX Content) to construct a database of any kind;
(x) Store the Service (including any RPX Content), it its entirety or in any part, in databases for access by Subscriber, its Users, or any third party, or distribute any database services containing all or part of the Service (including any RPX Content);
(xi) Use the Service in any way to assemble, create, or improve the quality of any data sold or contributed by Subscriber or any User to any third party;
(xii) Introduce any malicious software, viruses, bugs, or malware into the Service;
(xiii) Use the Service (including any RPX Content) in any manner that misappropriates or infringes the intellectual property rights of a third party;
(xiv) Attempt to gain unauthorized access to another individual’s personal information or non-personal information;
(xv) Use the Service or the information contained therein (including any RPX Content) to send junk mail, unsolicited mailings, spam material, or other unauthorized e-mail, or advertisements;
(xvi) Use the Service to encourage any illegal activities or post obscene, defamatory, threatening, abusive, or hateful content directed at another individual; and
(xvii) Violate any applicable laws or regulations in its use of the Service.
(c) Subscriber further agrees that it will not, will ensure that its Users do not, and will not assist, encourage, or permit any third party to:
(i) commercially exploit the Service, or any part thereof, including but not limited to incorporating into or disclosing RPX Content into products for sale or provision of services for a fee or other consideration, including the sale or marketing of any membership or subscription in any organization, network or other entity;
(ii) use the Service, or any part thereof, or any RPX Content for the benefit of or in connection with (1) any AI learning, natural language processing or machine learning tool, large language model, or (2) any entity reporting on patent litigation, except to the extent permitted by applicable law; or
(iii) make available, commercialize, sell, or offer for sale any products or services derived from or incorporating the Service, or any part thereof, or RPX Content directly or indirectly.
In no event is this Section 3.3(c) intended to prohibit (x) a Subscriber from any evaluation or analysis relating to its own patents or the patents of any third party, (y) a Subscriber that is an operating company from licensing its own products that do not compete with the Service, or (z) any Outside Adviser User from using the Service for defensive or offensive patent litigation purposes on behalf of the applicable Subscriber solely where such Subscriber is an operating company.
(d) Outside Adviser Users may not use the Service for any purpose other than for the benefit of Subscriber and in the course of performing specific patent-related legal services for Subscriber as requested by Subscriber. Prior to receiving any access to the Service, each Outside Adviser User shall enter into a separate written agreement with RPX in the form as provided by RPX, which may be a clickthrough agreement, warranting the foregoing.
4. REGISTRATION.
4.1. User IDs. RPX may provide each User with an individual user ID (each a “User ID”) for access to certain parts of the Service. A User ID may only be used by the individual to whom it is issued. If a User received a User ID with access to the Service, the following additional terms would apply to such User’s use of that User ID:
(a) A User may only use such User ID while such User is employed by the company or other organization for which RPX authorized its access to the Service.
(b) As between a User and Subscriber, Subscriber will have full control over each User’s User ID, and RPX may, in its sole discretion or at the request of Subscriber, at any time terminate a User’s ability to access those aspects of the Service that can only be accessed through a User ID. If a User ceases to be employed by Subscriber, RPX may terminate such User’s ability to access those aspects of the Service that can only be accessed through a User ID.
(c) In limited circumstances and subject to Section 3.3(d), RPX may provide an Outside Adviser User with a User ID with access to the Service. Such Outside Adviser User may use the User ID, and any RPX Content that it accesses through the User ID, solely for the benefit of Subscriber and in the course of performing patent-related legal services for Subscriber (and such use will be deemed “internal use” for purposes of Section 5 below), and such Subscriber will have full control over the User ID. If an Outside Adviser User ceases to act as outside legal counsel in patent-related matters for Subscriber, Subscriber shall notify RPX, and RPX may terminate such Outside Adviser User’s ability to access the Service.
4.2. Account Security. Upon receiving its User ID, a User will be required to select a password. Each User must choose a strong password and cannot reveal its password to others. Each User agrees that it is responsible for keeping its password confidential and secure, and further understands that Users (together with Subscriber if User is an individual who registers for a User ID for the Service) are solely responsible and liable for any activities that occur under such User’s User ID. Subscriber will be responsible for all activity that occurs under each User’s (including its employee’s and attorney’s) User IDs for the Service. If Subscriber or any User suspects or becomes aware of any unauthorized use of any User ID, or if Subscriber or any User becomes aware that any employee or attorney with an active User ID ceases to be employed or engaged by Subscriber, please notify RPX at empower-support@rpxcorp.com.
4.3. Registration Obligations. Subscriber and each User agree that all information provided to RPX during the registration process (“Registration Data”) will be accurate, complete, and current information, and that Subscriber and each User will maintain and update the Registration Data as needed to keep it accurate and current. Failure to provide accurate, current, and complete Registration Data could result in the suspension and/or termination of Subscriber’s and/or its Users’ ability to access all or portions of the Service.
5. CONTENT.
5.1. Use of RPX Content. To the extent RPX makes available certain RPX Content to Subscriber, and during the Term of the Agreement, Subscriber and its Users are permitted to store, display, analyze, modify, reformat, and print such RPX Content only for Subscriber’s own internal business use and subject to the restrictions set forth herein.
5.2. Subscriber Content.
(a) Subscriber and its Users grant RPX a non-exclusive right and license to use Subscriber Content solely to allow RPX to provide the Service on behalf of Subscriber and as otherwise expressly permitted herein.
(b) Subscriber represents and warrants (i) that it owns or otherwise controls all of the rights to the Subscriber Content that Subscriber or its Users post or upload through the Service and that Subscriber has all rights necessary to grant to RPX the license granted in the preceding paragraph; and (ii) that use of the Subscriber Content does not violate the Agreement and will not cause injury to any person or entity. Subject to the restrictions with respect to Private Subscriber Content that are set forth in any Order Form, RPX has the right but not the obligation to monitor and edit or remove any activity or Subscriber Content on or through the Service. RPX takes no responsibility and assumes no liability for any Subscriber Content or any other Content posted or uploaded or generated by Subscriber, its Users, or any third party.
5.3. RPX Proprietary Rights. Subscriber acknowledges and agrees that RPX and/or its licensors own all legal right, title and interest in and to the “look and feel” of the Service and any RPX Content including text, graphics, logos, button icons, photos, images, forms, audio, video, questionnaires, and software, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Subscriber further agrees that the Service (including the RPX Content) contains proprietary and confidential information that is subject to all applicable copyright, patent, trademark, and various other intellectual property laws under United States law, foreign laws, and international conventions. The Agreement is not intended to, and will not, transfer or grant any rights in or to, the RPX Content other than those which are specifically granted herein, and all rights not expressly granted herein are reserved by RPX or its licensors. For any use of RPX Content, Subscriber and its Users shall include the applicable attributions to RPX and/or its licensors. Subscriber acknowledges and agrees that RPX making available any RPX Content does not constitute or imply any endorsement, recommendation, or favoring by RPX of such RPX Content or any encouragement or assistance by RPX to assert any claim, action, or proceeding against any person.
6. FEEDBACK. If Subscriber or any of its Users submit to RPX feedback, suggestions, recommendations, or other input relating to the Service (“Feedback”), RPX owns, and Subscriber hereby assigns and agrees to assign to RPX, all right, title, and interest in and to such Feedback, including any and all intellectual property rights therein. Subscriber represents and warrants that it has all rights necessary to assign to RPX the rights in the foregoing.
7. TRADEMARK INFORMATION. RPX, the RPX logo, and other RPX trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of RPX Corporation subject to intellectual property laws under United States law, foreign laws, and international conventions. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. Subscriber and its Users are granted no right or license under the Agreement in any trademarks.
8. TERMINATION.
8.1. Termination.
(a) RPX may at any time, upon its sole discretion, terminate, suspend, or downgrade all or a portion of Subscriber’s or any User’s access to the Service, without prior notice to Subscriber, for any reason, including certain prohibited conduct, including, but not limited to: (i) violations of these Terms or any other policies or guidelines that are referenced herein or posted on the Service; (ii) a request by Subscriber to cancel or terminate Subscriber’s and/or its Users’ access to the Service; (iii) discontinuance or material modification to the Service or any part thereof; (iv) a request or order from law enforcement, a judicial body, or other government agency; (v) where provision of the Service to Subscriber or its Users is or may become unlawful; (vi) unexpected technical or security issues or problems; (vii) Subscriber’s or its User’s participation in fraudulent or illegal activities; (viii) where RPX reasonably believes there is a threat to the functionality, security, integrity, or availability of the Service or any RPX Content; (ix) failure to pay any membership fees owed by Subscriber in relation to the Service if User received a User ID with access to the Service; (x) failure to pay for any fees to RPX on time; or (xi) as set forth elsewhere in the Agreement.
(b) Any such termination, suspension, or downgrade pursuant to Subsection 8.2(a) shall be made by RPX in its sole discretion, without any liability to Subscriber or its Users, and RPX will not be responsible to Subscriber, its Users, or any third party for any damages that may result or arise out of such termination, suspension, or downgrade of Subscriber’s or its Users’ access to the Service.
8.2. Effect of Termination.
(a) Sections 1 (Your Acceptance of Terms), 3 (Service), 4.2 (Account Security), 5.2 (Subscriber Content), 5.3 (RPX Proprietary Rights), 6 (Feedback), 7 (Trademark Information), 8.1(b), 8.2 (Effect of Termination), 9 (Confidentiality), 10 (Links and Third-Party Material), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnity), and 14 (General), shall survive any termination the Agreement.
(b) Upon termination of these Terms, (i) Subscriber shall return or, at RPX’s option, destroy, any confidential information of RPX; and (ii) all rights of Subscriber and its Users, including any rights granted to Subscriber and its Users to the Service and RPX Content, and obligations of RPX shall cease and be of no further force or effect.
9. CONFIDENTIALITY. Subscriber acknowledges that the Service, the terms of the Agreement, and RPX’s other products and services (including any new features or functionality) and any other proprietary or confidential information provided by RPX to Subscriber or its Users constitute valuable proprietary information and trade secrets of RPX. Subscriber and its Users agree not to use or disclose any of the foregoing proprietary confidential information of RPX for any purpose not expressly authorized by the Agreement. RPX may obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this Section. Subscriber and its Users agree to promptly report any breaches of this Section to RPX.
10. LINKS AND THIRD-PARTY MATERIALS. Certain Content or other features of the Service include materials from third parties or links to certain third-party websites. The Service may include Chinese litigation data sourced by PatSnap. RPX does not endorse or take responsibility for any third-party Content. Subscriber agrees that RPX is not responsible for the availability or accuracy of third-party Content. Subscriber understands that RPX has no obligation to, and generally does not, approve or monitor materials provided by third parties through the Service. Subscriber and its Users’ use of third-party Content is at its and their own risk.
11. DISCLAIMER OF WARRANTIES.
11.1. SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT SUBSCRIBER’S AND ITS USERS’ USE OF THE SERVICE IS AT ITS AND THEIR SOLE RISK AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. RPX AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, RPX AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET SUBSCRIBER’S OR ITS USERS’ REQUIREMENTS; (B) SUBSCRIBER’S OR ITS USERS’ USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE; OR (C) ANY RPX CONTENT OR OTHER INFORMATION OBTAINED BY SUBSCRIBER OR ITS USERS AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
11.2. THE SERVICE AND ALL CONTENT THEREIN HAS BEEN PREPARED FOR INFORMATIONAL PURPOSES ONLY WITHOUT REGARD TO ANY PARTICULAR USER’S OBJECTIVES. THE SERVICE AND THE CONTENT THEREIN IS NOT TO BE CONSTRUED AS A RECOMMENDATION, AN OFFER TO BUY OR SELL, OR THE SOLICITATION OF AN OFFER TO BUY OR SELL ANY INTELLECTUAL PROPERTY OR OTHER ASSETS OR SERVICES. ALTHOUGH THE SERVICE IS BASED UPON INFORMATION THAT RPX CONSIDERS RELIABLE AND ENDEAVORS TO KEEP CURRENT, RPX DOES NOT REPRESENT THAT THE SERVICE OR ANY CONTENT THEREIN IS ACCURATE, CURRENT, OR COMPLETE, AND IT SHOULD NOT BE RELIED UPON AS SUCH. THE FACT THAT RPX HAS MADE THE SERVICE AVAILABLE TO SUBSCRIBER OR ITS USERS DOES NOT CONSTITUTE A RECOMMENDATION THAT SUBSCRIBER ENTER INTO A PARTICULAR TRANSACTION OR PURSUE ANY PARTICULAR LEGAL ACTION. THE SERVICE IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO CONSTITUTE, AND SHOULD NOT BE CONSTRUED AS, LEGAL OR FINANCIAL ADVICE ON ANY SUBJECT MATTER. THEREFORE, SUBSCRIBER SHOULD NOT CONSIDER THIS INFORMATION TO BE AN INVITATION TO AN ATTORNEY-CLIENT RELATIONSHIP. SUBSCRIBER SHOULD ALWAYS SEEK THE LEGAL ADVICE OF COMPETENT COUNSEL IN ITS JURISDICTION. RPX IS NOT A LAW FIRM.
11.3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AS SET FORTH IN THIS SECTION 11, OR THE LIMITATION OF LIABILITY SET FORTH IN SECTION 12 BELOW. AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS IN THIS SECTION 11 OR IN SECTION 12 BELOW ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, THOSE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
12. LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF RPX AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARISING OUT OF OR RELATING TO THE AGREEMENT AND/OR THE SERVICE WILL NOT EXCEED A TOTAL OF THE GREATER OF (I) US$1000 OR (II) THE TOTAL AMOUNTS PAID BY SUBCRIBER TO RPX PURSUANT TO THE APPLICABLE ORDER FORM FOR THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT RPX AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO SUBSCRIBER OR ITS USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF RPX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (C) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF SUBSCRIBER’S OR ITS USERS’ TRANSMISSIONS OR DATA; (D) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE SUBSCRIBER’S OR ITS USERS’ TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (F) ANY OTHER MATTER RELATING TO THE SERVICE (INCLUDING ANY CONTENT).
13. INDEMNITY. Subscriber will indemnify, defend, and hold RPX (and its affiliates, subsidiaries, officers, directors, employees, agents, partners, and licensors) harmless from and against any loss, claim or demand, including reasonable attorneys’ fees, arising out of or relating to Subscriber’s or its Users’ breach of the Agreement, use of the Service, Subscriber or its Users’ violation of any law or the rights of RPX or any third party, or any Subscriber Content.
14. GENERAL.
14.1. Miscellaneous Terms. The Agreement, including online documents referenced herein, constitute the entire agreement between Subscriber and RPX with respect to the subject matter contemplated herein, and completely replace any prior agreements between Subscriber and RPX, whether written or oral, with respect to the subject matter hereof, and governs Subscriber’s use of the Service. Any membership agreements between Subscriber and RPX are separate from, and have no force or effect on, the Agreement, just as the Agreement has no force or effect on any membership agreements. Subscriber may also be subject to additional terms and conditions that may apply when Subscriber uses affiliate services, third-party content, or third-party software. If any part of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of RPX to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Subscriber agrees that, except as otherwise expressly provided in the Agreement, there shall be no third-party beneficiaries to the Agreement. The parties are independent contractors. No agency, partnership, joint venture, or employee-employer relationship is intended or created by the Agreement. Subscriber will not have the power to bind RPX or incur obligations on RPX’s behalf without RPX’s prior written consent. RPX reserves the right to utilize affiliates and subcontractors. No modification of the Agreement by Subscriber will bind either party. Any translation of the Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of the Agreement shall govern. Any headings in the Agreement are for reference only. For purposes of the Agreement, the words “include(s)” and “including” are deemed to be followed by “without limitation”. Subscriber agrees that any claim or cause of action arising out of or related to the Agreement or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred, except as otherwise required under applicable law. In the event of any conflict between the terms and conditions of these Terms (excluding the Privacy Policy), the Privacy Policy, or any online document referenced in these Terms (other than the Privacy Policy), the following order of precedence will apply: (a) the Privacy Policy; (b) these Terms (excluding the Privacy Policy), and (c) the applicable online document (other than the Privacy Policy).
14.2. Governing Law. The Agreement and the relationship between Subscriber and RPX shall be governed by the laws of the State of California, excluding its conflicts of law provisions. Subscriber and its Users agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the City and County of San Francisco, California, to resolve any dispute or claim arising from the Agreement. The parties expressly agree to exclude the application of (a) the U.N. Convention on Contracts for the International Sale of Goods (1980) and (b) Uniform Computer Information Transaction Act or any version thereof adopted by any state in any form, to the Agreement and the performance of the parties contemplated herein, to the extent that such convention or act might otherwise be applicable.
14.3. Arbitration. Any dispute, controversy or claim arising out of or in connection with or relating to Subscriber’s or its Users’ use of the Service or the Agreement, or any breach or alleged breach of the Agreement, shall be submitted to a single arbitrator and settled by binding arbitration pursuant to the Commercial Rules then in effect of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the City and County of San Francisco, California. Judgment upon the award may be entered in any court of competent jurisdiction and shall remain confidential. Arbitration shall be conducted in the English language. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT.
14.4. Equitable Relief. The parties agree that a breach of the confidentiality provisions of the Agreement or restrictions set forth herein would cause irreparable injury to RPX for which monetary damages alone would not be an adequate remedy, and therefore RPX shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
14.5. Force Majeure. RPX shall not be deemed to have breached any provision of the Agreement or be liable in any way for any delay, failure in performance, loss, damage or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruption or failures of communication systems or Internet equipment or service, other catastrophes, epidemics or pandemics, equipment failure, acts or omissions of third-party application or service providers or any other occurrences which are beyond RPX’s control.
14.6. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer (“use”) of the Service, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Service was developed at RPX’s private expense and is commercial in nature. By using or receiving the Service, any Government user agrees to the terms and conditions contained in these Terms including the terms and conditions contained in this Subsection.
14.7. Assignment. Subscriber may not assign the Agreement, in whole or in part, by operation or law or otherwise, or otherwise transfer any right, duty, or obligation under the Agreement without RPX’s prior written consent. RPX may freely assign the Agreement, in whole or in part, or any of its rights or obligations under the Agreement, in whole or in part, or split the Agreement so as to retain the benefits for both RPX and the separated entity, at no additional cost and without obtaining Subscriber’s prior written consent. Any purported assignment in violation of this Subsection shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
14.8. Notices. All notices will be in English. Except as explicitly stated otherwise, legal notices shall be sent to RPX at the following address (and must, at a minimum, include notice via email):
Attn: Legal Department
RPX Corporation
Four Embarcadero Center, Suite 4000
San Francisco, CA 94111
Email: Legal@rpxcorp.com
Unless otherwise stated in the Agreement, notice shall be deemed given upon receipt.
