Terms of Service
1.1. Prosrver LLC (“Prosrver”) appreciates the opportunity to serve your litigation support needs under the terms and conditions of these Prosrver Terms of Service (the “Terms of Service” or “Agreement”).
1.2. These Terms of Service apply to the services we provide through Prosrver, and any other affiliated Prosrver websites (collectively, the “Prosrver Services”).
1.3. Please carefully read and understand the entire contents of this Agreement before using the Prosrver web site or Services. Your use of the Prosrver web site and Prosrver Services, your creation of a Prosrver account via Prosrver’s website at www.prosrver.com (your “Prosrver Account”), or any of the Prosrver Services or products will constitute your consent and agreement to be bound by all terms and conditions of this Agreement (as amended from time to time), including, but not limited to, our Privacy Statement discussed below in the Section titled “Acceptance of Agreement.” If you do not agree with the terms and conditions in this Agreement, we will be unable to provide any Services to you.
1.4. These terms of service governing your use of the Prosrver website and the Prosrver services include a binding arbitration provision set forth below which includes a waiver of class actions and provisions for opting out of arbitration.
2. Acceptance of Agreement
2.1. By using the Services described in this Agreement, by creating a Prosrver account or by using the Prosrver website or Prosrver Services, you agree to be bound by all the terms and conditions of this Agreement (as may be amended from time to time), including, but not limited to, our Privacy Statement. You warrant that you have read our Privacy Statement, as may be amended from time to time and available at www.prosrver.com/privacy herein are to the customer described on the web site order form registration page. If you are not entering into this Agreement on your own behalf, you represent and warrant that you are legally authorized to enter into the Agreement on behalf of the party you represent and that your actions will legally bind such party.
3.1. Prosrver may amend this Agreement at any time and will provide notice of any such amendment, on the web site. Your use of the Prosrver web site or Prosrver Services after the effective date of any amendment shall constitute your consent to be bound by the Agreement as amended. In addition, by accepting or using the Prosrver web site or Prosrver Services, you agree to periodically review this Agreement and be bound by any amendments to the Agreement.
4. Independent Contractors
4.1. You and Prosrver are independent contractors with respect to each other. Neither party is an employee, agent, representative, broker, or partner of the other. This Agreement shall not be construed to create an association, joint venture, or partnership between the parties.
5. Control of Website
5.1. Prosrver has sole control over the use of the Prosrver web site and Prosrver Services and has the right to prohibit or remove any materials or communications for any reason or no reason.
6. Agreement to Electronic Transactions
6.1. You agree that all of your transactions with or through Prosrver will be conducted electronically.
6.2. Pursuant to California Rule of Court 2.251(b)(1)(C) and Code of Civil Procedure, § 1010.6(a)(2)(A)(ii), your acceptance of these terms of service constitutes consent to receive service of Notices electronically at the electronic service address provided.
7. Password Protection
7.1. You are responsible for maintaining the confidentiality of the password that you will choose as part of the registration process for the Services (the “Password”). Subject to applicable law, you agree to be liable for all uses of your Password whether or not actually authorized by you, including, but not limited to uses of your Password to enter the web site and payment of filing or other fees to Prosrver or to others. You should not give your Password to anyone who is not authorized to take actions on your behalf.
8. User Affirmations and Declarations
8.1. By using the Prosrver web site or Prosrver Services, you represent, affirm and declare that (i) you will adhere to the laws and regulations of the jurisdiction in which you are conducting business through Prosrver and that you are subject to civil and criminal penalties should you violate those laws and regulations; and (ii) you understand that any information provided by Prosrver to you in the course of performing the Services may be derived from third party databases with respect to which Prosrver has no control, and that Prosrver shall have no liability whatsoever with respect to such information, including, without limitation, in the event any such information is inaccurate, out of date, contains errors or omissions, or is otherwise incorrect in any way. Prosrver is not responsible for notifying you of changes to court rules. At no time shall any contact between you and Prosrver constitute the giving of legal advice by Prosrver.
8.2. You are responsible for providing Prosrver with accurate, complete and updated identification and contact information, including name, address, email address, facsimile number and, where applicable, bar number. Prosrver is not responsible for and shall have no liability for identifying case members or case participants to a specific case file or for failure of delivery of materials to because of incorrect contact information.
8.3. You must take steps to ensure that Prosrver communications are not identified as spam. Prosrver shall have no liability for the failure of service or receipt of documents. Pursuant to these Terms of Service, you hereby agree to indemnify Prosrver from and against all losses, claims, and expenses (including attorneys’ fees and costs) arising out of or relating to your failure to take necessary steps to ensure that Prosrver communications are not identified as spam.
8.4. You understand and agree that Prosrver may advance statutory filing fees, witness fees and other third party fees, including, but not limited to fees charged by the local electronic filing management system provider (collectively, “Disbursements”) on your behalf in connection with the Services. By using the Services you will be deemed to have requested Prosrver to advance such fees and agree to repay such advances on the terms and conditions set forth in this Agreement and the applicable invoice.
8.5. You agree to use reasonable efforts to take precautions against the contamination of your computer systems and files by software viruses, worms or other malicious agents. At a minimum, such precautions shall include the installation, upgrading and use of commercial virus detection software to scan files and documents transmitted to Prosrver.
9.1. Prosrver has the sole discretion to determine the fees charged to you for using its web site or Services. Fees for the Prosrver Services may vary by jurisdiction, service level and/or the amount of time spent completing Services. Prosrver reserves the right to change its fee structure at any time. Prosrver will provide notice of any such changes to its fee structure. By accepting or using the Prosrver web site or Services after such notice is provided, you agree to be bound by any such fee changes.
10. Fee Waivers
10.1. Prosrver will waive or credit its base filing service fee in electronic filing cases where the Court informs Prosrver that it has granted the filing party a fee waiver. Should the Court reject or deny the Customer’s fee waiver, Prosrver will invoice and collect its filing service fees in addition to any court filing fees the Court collects for the transaction.
11. Payment Terms
11.1. Your use of Prosrver Services may result in the incurrence of Prosrver Fees and Disbursements of Statutory Fees made on your behalf. You are responsible for paying to Prosrver all fees for Services and for reimbursing Prosrver for any and all Disbursements.
11.2. Any amounts not paid within fifteen (15) days after the due date may be charged 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.
11.3. Prosrver Fees are those fees imposed by Prosrver for Prosrver Services
11.4. Statutory Fees include without limitation statutory court fees, witness fees and any other third party fees.
11.5. Statutory Fees of $20 or more disbursed on your behalf are assessed a 3.3% convenience fee for processing and collecting these Disbursements in accordance with applicable law. This fee will not apply to Prosrver Fees. Customers can choose to pay via ACH or eCheck to avoid this fee.
11.6. Payment Methods You authorize Prosrver to charge your credit card, debit card, or financial institution account (via an automated clearing house (“ACH”) transaction), for all amounts owed to Prosrver with respect to Services and Disbursements you ordered via your Prosrver Account or otherwise. When you provide a Payment Method to Prosrver, you confirm that you are permitted to use that Payment Method. You also authorize Prosrver to collect and store the related payment card or financial institution account number(s) or other information, along with other related transaction information (collectively, “Payment Information”). When you make a purchase, you authorize Prosrver to charge the full amount of the transaction, including statutory court and witness fees to the Payment Method you designate for the transaction. You also acknowledge and agree that Prosrver may share selective Payment Information with third parties, such as payment processors and/or credit agencies, for the purpose of checking credit, effecting payment to Prosrver and servicing your Prosrver Account. For purposes of this Section titled “Payment Terms”, “Prosrver” refers to Prosrver LLC along with any service providers chosen by Prosrver to provide the Payment Methods. The terms described in this Section titled “Payment Terms” supersede any payment terms stated on your invoices.
(a) Authorization to Pay by Credit or Debit Card. If the Payment Method you choose is to pay by credit or debit card, we may obtain pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will bill your card at the time of purchase or shortly thereafter in the amounts owed to Prosrver as indicated on the corresponding Prosrver invoices. If you cancel an order before completion, that pre-approval may result in your funds or available credit not being immediately available. If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee. The Administrator (as defined below) may be able to change or update the card information (“Card Information”), including the card number, name on the card, expiration date, and the card verification value (CVV) code, assigned to your Prosrver account at a later time or times, and in a manner that Prosrver requires in its sole discretion. Unless you are a self-represented litigant, you represent that any credit card used to pay for a purchase from Prosrver is a business or commercial card and not a card issued primarily for personal, family or household purposes.
(b) Authorization to Pay by ACH. If the Payment Method you choose is to pay by ACH (“ACH Payment Service”), you hereby authorize Prosrver to electronically debit or credit, via an ACH transaction, the bank deposit account you designate from time to time (“Bank Account”). By choosing this Payment Method, any convenience fee associated with statutory court and witness fees will be waived. NOTE THAT THE ACH PAYMENT SERVICE IS NOT AVAILABLE FOR SELF-REPRESENTED LITIGANTS AND IS ONLY AVAILABLE FOR BUSINESS ORGANIZATIONS OR SOLE PROPRIETORSHIPS ENGAGING IN BUSINESS-PURPOSE TRANSACTIONS. These Terms of Service, the related Prosrver webpages, and information you input to such webpages (or which Prosrver reasonably believes was inputted by you), during your initial enrollment in the ACH Payment Service and any time you update or amend the same (which Prosrver may require in its sole discretion), each constitute your authorization to Prosrver to debit or credit your Bank Account via ACH transactions (“Authorization”), as provided in these Terms of Service. The following terms and conditions apply to the ACH Payment Service:
1. Authorization to Debit and Credit Bank Account. You hereby authorize Prosrver to initiate: (a) recurring automatic ACH debits to your Bank Account in the amounts owed to Prosrver as indicated on the corresponding Prosrver invoices; and (b) ACH credits to your Bank Account to correct any erroneous debits or provide a refund, as approved by Prosrver in its sole discretion. Your Authorization also includes permission to collect the following, whether provided as part of the ACH enrollment or when you enrolled in Prosrver’s Services generally: (i) your name; (ii) your current mailing address and Bank Account Information (as described in Paragraph 3. below); (iii) your Internet Protocol (IP) address; and (iv) the means used by Prosrver to authenticate the person providing the Authorization on your behalf as described in the Sections below titled “Administrators and Sub-users” and “Credentials and Authorizing Transactions”. With respect to each ACH transaction you authorize, you agree to be bound by the “National Automated Clearing House Association Operating Rules and Guidelines” (“NACHA Rules”), as may be amended from time to time.
2. Timeframe and Amounts of Debits to Bank Account. ACH debits to your Bank Account generally will occur one to five days after the date of the invoice(s) generated by Prosrver. You acknowledge that the amounts of the automatic ACH debits to your Bank Account may vary depending on the invoice amounts.
3. Bank Account Information. In accordance with procedures established by Prosrver, you agree to provide to Prosrver the necessary information pertaining to your Bank Account in order to debit or credit your Bank Account via an ACH transaction, including (but not limited to) the name of your financial institution, the financial institution’s routing number, the name(s) of the owner(s) of your checking account designated as the Bank Account, and the account number of the Bank Account (collectively “Bank Account Information”). The Administrator (as defined below) may be able to change or update the Bank Account Information at a later time and in a manner that Prosrver requires in its sole discretion.
4. Revoking your authorization. This Authorization will remain in full force and effect until you notify Prosrver by electronic message at [email protected] that you wish to revoke this Authorization. Prosrver requires at least 10 business days’ prior written notice in order to revoke (cancel) this Authorization. Revocation will not affect Prosrver’s right to initiate ACH credits to your Bank Account in order to correct or adjust any debits that were processed before your revocation became effective.
4. Return of ACH Entries. If an ACH payment is returned from your Bank Account for insufficient or uncollected funds or for erroneous information, Prosrver may reinitiate the returned ACH debit to your Bank Account within one to five days after the initiation of the first ACH debit. You agree to pay Prosrver a returned payment fee of $25 that may be charged by Prosrver, for each returned ACH debit from your Bank Account. Any amounts owed to Prosrver that cannot be collected by an ACH debit will be charged to the backup credit card on file with Prosrver as described below.
5. Filing Claims for Alleged Errors. If you believe an ACH debit initiated by Prosrver occurred in error, there was an error in the amount of a debit, or any other error, you must file a claim with Prosrver at once by contacting Prosrver at [email protected], giving Prosrver all information you have about the alleged error, and taking any other action(s) as reasonably required by Prosrver. You have sixty (60) days after the date of the posting of the ACH debit in question to file a claim. If you file a claim with Prosrver after more than sixty (60) days, Prosrver will have no obligation to investigate the claim and you will have no right to recover any funds you may have lost as a result of the alleged error. If an error occurs with regard to an ACH credit, Prosrver may take any action permitted by law and the NACHA Rules to recover the funds from your Bank Account.
6. Representations and Warranties. You represent and warrant to Prosrver that: (i) you are not a self-represented litigant, that you are a business organization or a sole proprietorship, and that the ACH Payment Service will not be used for personal, family or household purposes; (ii) you own the Bank Account; (iii) you have authority on behalf of any other owner(s) of the Bank Account to authorize Prosrver to debit the Bank Account as agreed in these Terms of Service; and (iv) all ACH transactions you authorize comply with all applicable laws and the NACHA Rules, as may be amended from time to time.
11.7. You must have an account established with Prosrver prior to any Services being performed. When establishing an account with Prosrver, Prosrver requires a valid credit card be placed on file with Prosrver as a form of back up payment. You will be billed for all Services provided and all Disbursements, such as statutory court fees, witness fees and other third party fees, including, but not limited to fees charged by the local electronic filing management system provider, made on your behalf. Payment for Services rendered by Prosrver is non-refundable. Payment outstanding fifteen (15) days or more beyond the terms stated in an invoice is considered delinquent. Should any invoice become delinquent, Prosrver reserves the right to charge the invoice amount to the backup credit card. Because all transactions are conducted electronically, you agree that the physical credit card need not be present with Prosrver in order for the charge to the card to be valid, and you agree not to dispute the validity of any such charge on that basis. Returned payments including but not limited to returned checks, ACH, eCheck, and credit card chargebacks may incur returned payment fees of up to $25.00 per retuned payment.
11.8. You are liable for payment of all invoices. You may have a third party, such as a client of yours, pay an invoice directly to Prosrver. However, it is understood that Prosrver has no relationship with such third parties and has no obligation to collect from them. The payment obligation rests solely with you, and Prosrver will hold you liable for payment of any invoice submitted to a third party for payment. Prosrver reserves the right to impose or reduce the limit on the balance that a customer may owe us, even if not yet billed, for any or no reason. Should any invoice become delinquent and Prosrver has to initiate a collections effort, all reasonable collection costs and/or legal fees will be added to the balance due.
12.1. Subscriptions may be offered for certain Prosrver services. Where applicable, subscriptions are on a monthly basis, with the full month’s subscription fee due on the first of each month. Changes, additions, deletions, upgrades and downgrades to your subscriptions can be supported by contacting Prosrver customer support. There is no refund for a partial month’s subscription fee upon cancellation.
13. Prosrver’s Right to Refuse or Delay Services and Other Requests
13.1. Prosrver may delay or refuse to process any request for a Service or to make a payment via a Payment Method or any other type of request (collectively, “Requests”), including without limitation requests to change or update Card Information or Bank Account Information or to authorize payment via a Payment Method, without prior notice to you if Prosrver: (i) is unable to confirm to its satisfaction the person’s identity or his or her authority to make the Request; (ii) believes in its sole discretion that it is prudent for security reasons to take additional measures to verify the authority and/or identity of the person who initiated the Request; (iii) has a suspicion that the transaction may be in violation of applicable law, or the transaction is otherwise under review by Prosrver; or (iv) determines that you are delinquent in payment of fees due Prosrver. You agree to immediately provide to Prosrver any additional information it requests in relation to this Section titled “Prosrver’s Right to Refuse or Delay Services and Other Requests”, and agree to any additional methods of verification (as determined in Prosrver’s sole discretion) to verify any person’s authority or identity or to verify the authenticity of a Request.
13.2. Prosrver’s ability to provide the Services and Payment Methods may be dependent upon Prosrver’s ability to obtain access to third party vendors, websites and networks (collectively “third party services”). In the event any third party service is unavailable or delayed for any reason, or Prosrver determines in its discretion that Prosrver cannot continue utilizing a third party service, Prosrver may discontinue the Services or any Payment Method, delay your access to the Services or any Payment Method, and/or delay acting on any Request.
13.3. Without limiting the foregoing, Prosrver is not responsible for any inconvenience, loss or damage you may incur as a result of any discontinuation of or delay in your access to any Service or ability to make a payment to Prosrver via a Payment Method, or delay of any Request.
14. Administrators and Sub-users
14.1. The person that initially creates your Prosrver Account will be identified as the administrator (“Administrator”) for your management and use of your Prosrver Account. The Administrator will be required to establish a username and password, and such other security devices as Prosrver may reasonably establish from time to time, (collectively, “Credentials”) upon creating a Prosrver Account. The identity of the Administrator may be changed from time to time in a manner that Prosrver requires in its sole discretion. You agree that the Administrator shall have the authority, on your behalf, to: (i) create your Prosrver Account; (ii) enroll you in Payment Methods and authorize payments via a designated Payment Method; (iii) initiate Services; (iv) update or change your Bank Account Information or Card Information; and (vi) update your contact information (e.g., address, telephone number, etc.).
14.2. The Administrator may from time to time identify one or more sub-users via your Prosrver Account (“Sub-users”) or in a manner that Prosrver otherwise requires in its sole discretion. The Administrator may also remove or delete any Sub-user via your Prosrver Account or in a manner that Prosrver requires in its sole discretion. A Sub-user will be required to establish Credentials unique to the Sub-user. You agree that Sub-users are authorized to initiate Services and Disbursements on your behalf that result in payment(s) for Services via a Payment Method designated by the Administrator, but will not be able to: (i) enroll you in a Payment Method; (ii) update or change your Bank Account Information or Card Information; or (iii) update your contact information (e.g., address, telephone number, etc.).
14.3. Prosrver may suspend the Administrator’s or any Sub-user’s access to your Prosrver Account if Prosrver, in its sole discretion, reasonably believes the Prosrver Account is being used or accessed in an unauthorized, illegal, or disruptive manner. You agree that the Administrator and Sub-users may use the Payment Methods, your Prosrver Account, and initiate any Service only: (i) for your own internal business purposes; and (ii) as authorized under, and in accordance with, these Terms of Service and your own internal policies. The Administrator and Sub-users will not initiate Services for or on behalf of any third party, or otherwise allow any third party to use your Prosrver Account, without Prosrver’s prior written consent.
15.1. You shall be responsible for any taxes which Prosrver may be required to pay or collect under any applicable law in connection with the Services, and any such amounts paid by Prosrver shall be charged to your account.
16. Your Information
16.1. You agree to:
(i) provide true, accurate, current, and complete information about yourself and/or your organization, as appropriate, as prompted by the Prosrver registration form or any other form, including, but not limited to, your e-mail address for notices and any other communications;
(ii) maintain and promptly update the foregoing to keep it true, accurate, current, and complete; and
(iii) provide any other information that Prosrver may request of you from time to time for purposes reasonably related to your use of the Prosrver web site or Services.
17. Modification of Terms Features and new products may be added to or withdrawn from Prosrver without notice
17.1. Prosrver may at any time, at our sole discretion, update and revise this Agreement (including the types and amounts of Fees). Prosrver will notify you of any material change(s) in this Agreement and or Fees by posting the proposed change(s) on the Prosrver web site. Any changes that Prosrver makes to this Agreement will be effective immediately upon posting. Please check this page periodically for changes to the Agreement; you will be able to determine if this Agreement has been changed since your previous visit by viewing the “Last Updated” information that appears at the top of this Agreement
17.2. Prosrver also reserves the right to modify or discontinue features and capabilities of the Prosrver Services, without advance notice for normal maintenance and enhancements, and to modify or update the Prosrver Services documentation located on the web site. Fees pertaining to enhanced and/or new features will be effective immediately upon release of such features.
17.2. The continued use of Prosrver Services by you or your agents, if applicable, after such notice will constitute acceptance of the change. If you object to such modifications, your sole recourse will be discontinuance of your use of Prosrver Services.
18. Services Provided As Is – No Warranties
18.1. You agree that your use of Prosrver Services, your Prosrver Account and information on the web site is at your own and sole risk. All Services are provided on an “AS IS” and “AS AVAILABLE” basis. Prosrver disclaims all warranties and duties of any kind, express, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a specific purpose, non-infringement or title, duties of workman-like effort, or lack of negligence.
18.2. Prosrver assumes no responsibility for errors or omissions on its web site and is not responsible in any way for the functionality, specifications, or any other aspect thereof. Prosrver does not guarantee continuous, uninterrupted or secure access to Prosrver Services, your Prosrver Account or that defects in its web site will be corrected.
18.3. Prosrver reserves the right at any time and without prior notice to change the hours of operation to limit your access to Prosrver in order to perform repairs, make modifications as a result of circumstances beyond the reasonable control of Prosrver and to add or withdraw products or features to or from Prosrver at any time. You are responsible for implementing sufficient procedures to satisfy your particular requirements for protection of your system and/or accuracy of data, and for maintaining a means of reconstruction of lost data.
18.4. Without limiting the above, you agree that neither Prosrver nor any of its parent corporations, subsidiaries, partners, employees, independent contractors, officers, directors, attorneys, agents, affiliates, representatives, successors and/or assigns (each a “Prosrver Party”; collectively the Prosrver Parties) makes any warranties or undertakes any duties regarding, without limitation, the following:
(i) infringement of title or quiet enjoyment;
(ii) functionality, including functionality of search or retrieval software;
(iii) content, format, accuracy, completeness, or completion of forms;
(iv) receipt (timely or otherwise), approval and/or processing of documents by courts and/or any other government agencies;
(v) appropriateness or propriety of documents handled with respect to any Services;
(vi) timeliness of Services; (vii) uninterrupted, secure, error or virus-free Services or storage;
(viii) adequacy of fees paid to courts and/or other government agencies;
(ix) any alteration or destruction of a document resulting from third parties’ unauthorized access to or use of Prosrver’s website (e.g. computer hackers); and
(x) any losses or damages or alteration 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 Prosrver.
18.5. Prosrver is not responsible for and shall have no liability for (i) identifying documents to be included in a case file, for the failure of documents to be included in a case file or for the completeness of a case file document library or case service lists; or (ii) the accuracy or completeness of case service lists identified on any of its Prosrver sites or Services; or (iii) the accuracy of information provided by the Court to Prosrver or any actions Prosrver takes based upon that information, or (iv) the content of any documents that are posted or distributed via its Services or in any case file.
18.6. With respect to filing documents with the court, you are solely responsible for transmitting documents correctly and in a timely fashion, for confirming the filing charges on the receipt, and for checking and responding to notifications, email or otherwise, for rejected filings or documents. If you do not receive confirmation within (3) days (or before the expiration of any filing or service deadline) documenting the completion of your assignment, it is your responsibility to immediately contact Prosrver and provide details of the document transmission, including the original filing or service receipt, which was generated at the time the filing or service was performed by Prosrver, to enable Prosrver to determine what action should be taken, and if necessary to manually file and serve such documents before the expiration of any applicable deadline. You waive and release any claims based upon errors, defaults, or omissions if you fail to provide notice and/or resubmit to the Court or otherwise comply with this paragraph.
18.7. By uploading content to or submitting any materials, you grant (or warrant that the owner of such rights has expressly granted) Prosrver a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license, with right to sublicense, to use, reproduce, distribute, modify, adapt, publish, publicly perform, publicly display, digitally display and digitally perform, translate, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout this universe; provided that Prosrver may only exercise the foregoing right and license (a) in connection with its operation and maintenance of the Prosrver web site and/or the provision of related goods and services to authorized users and/or their designees, and/or (b) to comply with or satisfy applicable court rules or procedures. You agree that you shall have no recourse against Prosrver for any alleged or actual infringement or misappropriation of any proprietary right with respect to your communication with Prosrver.
19. No Incidental or Consequential Damages
19.1. To the fullest extent allowed by applicable law, you agree that none of the Prosrver Parties will be liable to you, your successors, agents, heirs or assigns, and/or any other person or entity for general, special, incidental, consequential, indirect, exemplary or punitive damages of any kind, including, but not limited to, those damages resulting from loss of use, data, sales, goodwill, or profits, failure to meet any duty (including good faith or reasonable care) whether or not Prosrver has been advised of the possibility, or under any legal or equitable theory of liability, including theories of tort, contract, or otherwise arising out of the use of the Prosrver web site or Services or the termination of your use of the Prosrver web site and Services.
19.2. You expressly agree and acknowledge that none of the Prosrver parties shall any liability whatsoever with respect to any actions or omissions by any court and/or other government agencies with whom any Prosrver party interacts in connection with the services. In particular, none of the Prosrver parties shall have any liability with respect to any court and/or Government agency’s failure to provide accurate information to any Prosrver party (including but not limited to whether a filing party is entitled to a fee waiver), or to properly or timely receive, file, or process any documents or other materials transmitted by any Prosrver party on your behalf.
19.3. No Prosrver party shall be liable for any loss, injury, claim, liability, or damage of any kind resulting from your use of the Prosrver website, the content, the comments, the interactive areas, any facts or opinions appearing on or through an interactive area or any third party communications. Prosrver shall not be liable for any special, direct, indirect, incidental, punitive, or consequential damages of any kind whatsoever (including, without limitation, attorney’s fees) in any way due to, resulting from, or arising in connection with the use of or inability to use this website, the interactive areas, the content, the comments, or any third party communications.
20. Limitation of Liability
20.1. You agree that your sole remedy for any breach of this Agreement by Prosrver or any of the Prosrver Parties shall, at the option and sole discretion of Prosrver, be the following: (i) correction of any Service causing you damage; or (ii) refund of the amount you paid for the particular use of the Service that caused damages incurred by you in reasonable reliance on the Service. You also agree that the damage exclusions and this limitation of liability shall apply even if any remedy of its essential purpose fails.
21.1. You agree to indemnify, defend, protect and hold harmless all of the Prosrver Parties from and against all losses, claims, and expenses (including attorneys’ fees and costs) arising out of or relating to:
(i) your breach of any terms of this Agreement;
(ii) the determination by a jurisdiction that you have improperly utilized the Services of Prosrver to violate the laws and regulations of the jurisdiction;
(iii) your use of the Prosrver Services or your failure to pay any sums due Prosrver or any local government; or
(iv) your omissions or supplying inaccurate, out of date, erroneous or otherwise incorrect information as well as any action taken by you as a direct or indirect result of the information displayed on the Prosrver web site.
22.1. Prosrver reserves the right to terminate your use of the Prosrver web site and Services at any time for any reason or no reason at all.
23. Intellectual Property
23.1. You agree to respect the intellectual property rights of Prosrver and of others. Intellectual property laws protect some of the Services, including, but not limited to, our underlying technology and software. Prosrver reserves all rights not expressly granted in this Agreement. You agree not to reverse engineer, reverse assemble, or otherwise attempt to discover any source code from the Prosrver web site or to use any network monitoring or discovery software to determine the site architecture or extract information about usage, individual identities or users. You agree not to duplicate (other than for your records), modify, sell, distribute, or create derivative works based on any part of the Prosrver Services, and you agree not to attempt to transfer any of your rights under this Agreement. You also agree not to access the Services by any means other than through the interface that is provided by Prosrver on the web site. Prosrver has the right to monitor your use of the Prosrver website to assure compliance with these Terms of Service.
23.2. Prosrver has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “Act”) and avails itself of the protections under the Act.
23.3. If you believe that materials that have been posted on the Prosrver website have copied your work in a way that constitutes copyright infringement, please provide Prosrver’s Copyright Agent (identified below) the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
2. A description of the copyrighted work that you claim has been infringed.
3. A description of where (by URL and physical description) the material that you claim is infringing is located on the Website.
4. Your address, telephone number, and email address.
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
6. A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
23.4. Upon our receipt of a takedown notice materially complying with all of these requirements, Prosrver will remove, or cause to be removed, the identified materials. The individual that had posted such materials will then have an opportunity to demand reposting. You will receive notice of such if the individual properly requests reposting. Repeat offending websites, contributors (if any), or account holders (if any) will be terminated.
23.5. Notices to Prosrver regarding any alleged copyright infringement should be directed to: [email protected]
24. Comments, Suggestions and Posts
24.1. By posting or submitting any remarks, ideas, comments, or suggestions for improving or changing the Services to the Prosrver website (“Comments”), you automatically grant (or warrant that the owner of such rights has expressly granted) to Prosrver a royalty-free, nonexclusive, perpetual and irrevocable right and license to use, reproduce, modify, publish and distribute such Comments or incorporate such Comments into any form or technology now known or later developed, and you waive any moral rights you may have that would otherwise impair the ability to have the material altered or changed in a manner not agreeable to you.
24.2. None of the Comments shall be subject to any obligation of confidence on the part of Prosrver and Prosrver shall not be liable for any use or disclosure of any Comments. You shall not distribute on or through the Prosrver website any Comments containing any advertising, promotion, solicitation for goods, services or funds or solicitation for others to become members of any enterprise or organization without the express written permission of Prosrver. Prosrver may delete your Comments at any time for any reason without permission from you.
25.1. Prosrver and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these or any prior Terms of Service were adopted; (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of these Terms of Service.
25.2. References to “Prosrver,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users of the Services under these or prior Terms of Service between us, You agree, by entering into these Terms of Service, that you and Prosrver each are waiving the right to a trial by jury or to participate in a class action. These Terms of Service evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Service.
25.3. Notwithstanding the above, you may choose to pursue your claim in court and not by arbitration if you opt out of these arbitration procedures within 30 days from the date when your first accept these terms (the “Opt Out Deadline”). You may opt out of these arbitration procedures by calling 949-431-6872 or emailing [email protected] to request the opt out form. Any opt out received after the Opt Out Deadline will not be valid and you must pursue any claim in arbitration.
26. Notice of disputes
26.1. For all disputes and claims, whether pursued in court or arbitration, you must first give Prosrver an opportunity to resolve your dispute or claim by sending a written Notice of Dispute (the “Notice”) to Prosrver at the following address: Office for Dispute Resolution, Prosrver, 13700 Alton Pkwy #154 Irvine, CA 92618. The Notice must (a) describe the nature and basis of the dispute or claim and (b) set forth the specific relief sought (a “Demand”). If Prosrver and you do not reach an agreement to resolve the dispute or claim within 30 days after Notice is received, you or Prosrver may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Prosrver or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Prosrver is entitled.
26.2. The arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service and will be administered by the AAA. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by the terms of these Terms of Service. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including but not limited to, any claim that all or any part of these Terms of Service are void or voidable.
26.3. The payment of all AAA filing, administration and arbitrator fees for any arbitration initiated hereunder will be governed by the AAA Rules; provided, however that for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims under $75,000 determined to be frivolous, Prosrver agrees not to seek an award of attorneys’ fees in such arbitration proceedings even if an award is otherwise available under applicable law.
26.4. Unless Prosrver and you agree otherwise, any arbitration hearings will take place in the county of your billing address.
27. Class action waiver
27.1. You and Prosrver agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
27.2. Further, unless both you and Prosrver agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If you choose to pursue your claim in court by opting out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above.
28. Jury trial waiver
28.1. If a claim proceeds in court rather than through arbitration, we each waive any right to a jury trial.
29. Governing Law; Jurisdiction
29.1. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions.
30. Force Majeure
30.1. Prosrver shall not be responsible for delays or failure in performance resulting from acts beyond its reasonable control. Such acts shall include but not be limited to acts of God, war, riot, actual or threatened acts of terrorism, labor stoppages, governmental actions, fires, floods, pandemic, utility failures and earthquakes.
31. Third Party Rights
31.1. The provisions in this Agreement are for the sole benefit of you, the Prosrver Parties and the assigns of Prosrver and shall not inure to the benefit of any other person either as a third-party beneficiary or otherwise.
32.1. You may not assign any of your rights or delegate any of your duties under this Agreement without the prior written consent of Prosrver. Prosrver may assign any of its rights or delegate any of its duties hereunder to any party whatsoever.
33.1. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, the unenforceability of any provision shall not affect the enforceability of any other provision of this Agreement.
34.1. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of the right of such party to assert or rely upon such provision or right in any other instance.
35. Miscellaneous; Entire Agreement
36.1. You certify that you have read and understand this Agreement and state that you agree to be bound by the terms and conditions contained in this Agreement. You agree to comply with all city, county, state and federal laws and ordinances relating to the Prosrver Services.