Updated July 2018
The term “Orrick, Herrington & Sutcliffe LLP,” “Orrick,” “OHS,” “us,” “we” or “our” refers to Orrick, Herrington & Sutcliffe LLP and the other partnerships, corporations and other undertakings that are authorized to carry the name “Orrick” or one or more of those undertakings as the context requires. The term “you” refers to the user or viewer of the Site.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Acceptance of Agreement
You agree to the terms and conditions set forth in this Terms of Use Agreement (“Agreement”) with respect to the Site. This Agreement, our Privacy Policy and our Cookie Policy, along with any other terms or agreements agreed to on the Site, constitute the entire and only agreement between us and you with regard to your use of the Site and any Site Content and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site and the subject matter of this Agreement. This Agreement may be amended at any time by us from time to time without specific notice to you. The latest version of the Agreement will be posted on the Site, and you should review this Agreement prior to using the Site. When we update this Agreement, we will update the date at the beginning of this Agreement.
For purposes of clarity, this Agreement relates solely to your use of the Site and, to the extent you have entered into an engagement letter with Orrick for the provision of legal services to you, this Agreement will not affect such engagement letter and such engagement letter will apply to Orrick’s provision of such legal services.
2. Arbitration; Jury Trial Waiver
Any legal controversy or legal claim arising out of or relating to this Agreement, the Site or the Site Content (defined below), excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to, intellectual property ownership or infringement, shall be settled solely by confidential binding arbitration in accordance with the commercial arbitration rules of JAMS. 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 San Francisco, California, and in accordance with the “Governing Law” Section below. To the extent permitted by law, each party shall bear one-half of the arbitration fees and costs incurred through JAMS, and each party shall bear its own attorneys’ fees.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
3. Copyright
The content, articles, documents, information, materials, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site (collectively, “Site Content”) are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any Site Content or any part of the Site, except as allowed by the “Limited License; Permitted Uses” Section below, is strictly prohibited. You do not acquire ownership rights to any Site Content viewed through the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials. Some of the Site Content may be the copyrighted work of third parties.
4. Limited License; Permitted Uses
You are granted a nonexclusive, nontransferable, revocable license (a) to access and use the Site and Site Content solely in accordance with this Agreement; (b) to use the Site and Site Content solely for internal, personal, noncommercial purposes and (c) to print out discrete information from the Site and Site Content solely for internal, personal, noncommercial purposes and provided that you maintain all copyright and other policies contained therein. No printout or electronic version of any part of the Site or Site Content may be used by you in any litigation or arbitration matter whatsoever under any circumstances. Notwithstanding the foregoing, Site Content may include Documents (as defined in the “Forms, Agreements & Documents” Section below) that are made available for you to use. You may use those Documents in accordance with the terms, conditions and disclaimers set forth in the “Forms, Agreements & Documents” Section below, this Agreement, and subject to any other terms, agreements or disclaimers provided on the Site in connection with those forms or templates.
5. Restrictions and Prohibitions on Use
Your license for access and use of the Site and Site Content are subject to the following restrictions and prohibitions on use: You may not (a) copy, print (except for the express limited purpose permitted by the “Limited License; Permitted Uses” Section above), republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Site or any Site Content retrieved therefrom; (b) use the Site or any Site Content to develop, of as a component of, any information, storage and retrieval system, database, information base or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription or any other commercial distribution mechanism; (c) create compilations or derivative works of any Site Content ; (d) use any Site Content in any manner that may infringe any copyright, intellectual property right, proprietary right or property right of us or any third parties; (e) remove, change or obscure any copyright notice or other proprietary notice or terms of use contained in the Site or Site Content; (f) make any portion of the Site available through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future; (g) remove, decompile, disassemble or reverse engineer any Site software or use any network monitoring or discovery software to determine the Site architecture; (h) use any automatic or manual process to harvest information from the Site; (i) use the Site for the purpose of gathering information for or transmitting (1) unsolicited commercial email; (2) email that makes use of headers, invalid or nonexistent domain names or other means of deceptive addressing and (3) unsolicited telephone calls or facsimile transmissions; (j) use the Site in a manner that violates any state or federal law regulating e-mail, facsimile transmissions or telephone solicitations; and (k) export or re-export the Site or any portion thereof, or any software available on or through the Site, in violation of the export control laws or regulations of the United States.
6. No Legal Advice or Attorney-Client Relationship.
While the Site and Site Content concern legal issues, the Site and Site Content are not intended to and do not constitute legal advice, recommendations, mediation or counseling under any circumstance and should not be considered a substitute for advice from qualified counsel. The Site and Site Content, and your use thereof, does not create an attorney-client relationship, nor does our receipt of any email or electronic communication sent by or for you through or in connection with the Site. We do not warrant or guarantee the accurateness, completeness, adequacy or currency of the information contained in or linked to the Site. Your use of information on the Site or materials linked to the Site is entirely at your own risk. Because the information provided on the Site, and materials linked to on the Site, are general in nature, you should not act or rely on any information on the Site without seeking the advice of a competent attorney licensed to practice in your jurisdiction for your particular problem. Further, Site Content may contain descriptions of matters in which we successfully represented our clients. Such Site Content is not intended to be predictive of future results, even in similar circumstances, or offer any type of guarantee or assurance of outcome. The information contained herein does not necessarily reflect the opinions of our clients.
7. Forms, Agreements & Documents
Site Content may include sample forms, checklists, business documents and legal documents (collectively, “Documents”). All Documents are provided on a nonexclusive license basis only for your personal one-time use for noncommercial purposes, without any right to relicense, sublicense, distribute, assign or transfer such license. Documents are provided without any representations or warranties, express or implied, as to their suitability, legal effect, completeness, timeliness, accuracy and/or appropriateness. THE DOCUMENTS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH “ALL FAULTS,” AND WE AND ANY PROVIDER OF THE DOCUMENTS DISCLAIM ANY WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Documents may be inappropriate for your particular circumstances. Furthermore, state laws may require different or additional provisions to ensure the desired result. You should consult with legal counsel to determine the appropriate legal or business documents necessary for your particular transactions as the Documents are only samples and may not be applicable to a particular situation.
8. Linking to the Site
You may provide links to the Site, provided that (a) you do not remove or obscure, by framing or otherwise, the copyright notice or other notices on the Site, (b) your site does not engage in illegal or pornographic activities and (c) you discontinue providing links to the Site immediately upon request by us.
9. Certain Confidentiality Issues
Choosing an attorney is a serious matter and should not be based solely on information contained on the Site or in advertisements and may not be accomplished by sending us confidential information related to you and/or your company unless we have expressly authorized the submission of such information by written authorization.
You may send us email. However, if you communicate with us in connection with a matter for which we do not already represent you, you should not send us confidential or sensitive information via email because your communication will not be treated as privileged or confidential. If you communicate with us by email in connection with a matter for which we already represent you, you should note that the security of Internet email is uncertain. By sending sensitive or confidential email messages which are not encrypted, you accept the risks of such uncertainty and possible lack of confidentiality over the Internet.
10. Use in Other Jurisdictions
While we practice law in the jurisdictions in which our offices are located, our attorneys practice law only in jurisdictions in which they are properly authorized to do so, as described on each individual attorney’s biography on the Site. Except as expressly stated on the Site, each Orrick attorney is not certified by any professional or governmental authority. We do not seek to represent anyone in any jurisdiction where the Site or Site Content does not comply or is in any way inconsistent with the rules governing communication of legal services in a particular state. We are unwilling to assume the representation of clients from those states where the materials do not comply with State Bar requirements and where the client is generated as a result of that communication.
The term 'partner' is used to refer to a partner, member, or employee or consultant with equivalent standing or qualifications, in Orrick, Herrington & Sutcliffe LLP, Orrick, Herrington & Sutcliffe (Europe) LLP, Orrick, Herrington & Sutcliffe (UK) LLP or an affiliated entity.
11. Errors, Corrections and Changes
We do not represent or warrant that the Site will be error-free, free of viruses or other harmful components or that defects will be corrected. We do not represent or warrant that the information available on or through the Site will be correct, accurate, timely or otherwise reliable. The law is constantly changing and the information may not be complete or accurate depending on your particular legal issue. Each legal issue depends on its individual facts and different jurisdictions have different laws and regulations. We may make changes to the features, functionality or content of the Site at any time. We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Site.
12. Third‑Party Content
Third‑party content may appear on the Site or may be accessible via links from the Site. We are not responsible for and assume no liability for any third‑party content. You understand that the information and opinions in the third‑party content represent solely the thoughts of the author and are neither endorsed by us nor do they necessarily reflect our beliefs.
13. Unlawful Activity
We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, IP addresses and traffic information.
14. Indemnification
To the extent permitted by law, you agree to indemnify, defend and hold us and our partners, members, associates, agents, attorneys, employees, subcontractors, successors, assigns and affiliates (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense related to your violation of this Agreement; violation of applicable law or third‑party rights (including, without limitation, patent, trademark, copyright, trade secret or other intellectual property rights); willful misconduct or use of the Site or Site Content.
15. Disclaimer of Warranties; Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, THE SITE AND SITE CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH “ALL FAULTS”, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT). THE SITE CONTENT AND SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES OR INACCURACIES OF SITE CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY SITE CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SITE; (VII) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY; (VIII) YOUR USE OF THE SITE OR THE SITE CONTENT OR (IX) ANY DELAY OR FAILURE IN PERFORMANCE BEYOND OUR OR OUR AFFILIATED PARTIES’ REASONABLE CONTROL. TO THE EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR THE SITE OR SITE CONTENT. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, TO THE EXTENT PERMITTED BY LAW WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATED PARTIES DO NOT WARRANT THAT THE SITE OR SITE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITE OR SITE CONTENT WILL MEET YOUR REQUIREMENTS; THAT THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SITE AND SITE CONTENT WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, SITE CONTENT OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
IN NO EVENT SHALL WE, OUR AFFILIATED PARTIES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $100.00, AND THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST US AND ANY AFFILIATED PARTY.
THIS SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16. Use of Information/Privacy Policy
We reserve the right, and you authorize us, to the use and assignment of all information regarding Site uses by you and all information provided by you in any manner consistent with our Privacy Policy. Our Privacy Policy, as it may change from time to time, is a part of this Agreement.
17. Links to Other Web Sites
The Site and Site Content may contain links to other Web sites. We are not responsible for the content, accuracy or opinions expressed in such Web sites, and such Web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked Web site on our Site or in Site Content does not imply approval or endorsement of the linked Web site by us. If you decide to leave our Site and access these third-party sites, you do so at your own risk.
18. Copyrights and Copyright Agents
We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:
19. Legal Compliance
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and Site Content.
20. Governing Law
You agree that (i) the Site shall be deemed solely based in California and (ii) the Site shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California, is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
21. Miscellaneous
To the extent permitted by law, any cause of action by you with respect to the Site or Site Content must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The headings in this Agreement are included for convenience only and shall neither affect the construction or interpretation of any provision of this Agreement nor affect any of the rights or obligations of the parties to this Agreement. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed as much as possibly consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site or Site Content are in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
22. Severability
If any one or more of the provisions of this Agreement or of the Site should be ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable shall be unaffected; (ii) the effect of the ruling shall be limited to the jurisdiction of the court or other government body making the ruling; (iii) the provision(s) held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other government body is authorized to reform the provision(s), to the minimum extent necessary to render the provision(s) valid and enforceable in conformity with the intent as manifested herein and (iv) if the ruling and/or the controlling principle of law or equity leading to the ruling is subsequently overruled, modified or amended by legislature, judicial or administrative action, then the provision(s) in question as originally set forth in this Agreement or the Site shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.