DEBTOR’S ATTORNEY - TERMS AND CONDITIONS
National Data Center Subscriber Access Agreement – Debtor’s Attorney This Subscriber Access Agreement (“Agreement”) is entered into by the National Data Center, Inc. (“NDC”) and You (“Subscriber”), who has clicked on “Join Now”, “Sign Up” or similar, registering, accessing or using the NDC.
1. Summary of Services. In consideration as set forth herein, NDC agrees to provide, and Subscriber agrees to use in a manner consistent with this Agreement, Chapter 13 case information that is furnished by Chapter 13 trustees to Parties-In-Interest concerning the bankruptcy estate or the administration of the bankruptcy estate.
2. Definitions. Unless otherwise defined herein, the words used in this Agreement shall have the same meaning as set forth in section 101 of the United States Bankruptcy Code (11 U.S.C. § 101).
2.1 Applicable Law means the United States Bankruptcy Code and applicable federal, state and local statutes, regulations, regulatory guidelines and judicial and administrative opinions and interpretations.
2.2 Chapter 13 Data or NDC Data means (a) Chapter 13 case information made available to Party-in-Interest through the NDC, (b) any non-Chapter 13 case information, including user's content that is posted, provided or shared, (c) information that Subscriber or third parties can retrieve from NDC or provide to NDC.
2.3 Data Services means a set of APIs and services (such as FTP Servers, or Reporting Services) that enable others, including application developers and website operators, to retrieve Chapter 13 Data from NDC or provide Chapter 13 Data to us.
2.4 NDC or The NDC means the National Data Center, Inc., and the features and services we make available, including through (a) our website at www.ndc.org and any other NDC branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions); (b) our Data Services. NDC is a Section 501(c)(6) nonprofit corporation that collects, houses, and administers Chapter 13 bankruptcy data to assist Chapter 13 Trustees in performing their statutory duty to provide data to parties in interest in Chapter 13 cases.
2.5 Party-in-Interest means an entity who qualifies under one of the following categories: (a) a creditor or person who has a legally protected interest that could be affected by the proceedings in a Chapter 13 Bankruptcy case; (b) the Chapter 13 debtor; (c) legal counsel for the Chapter 13 debtor; (d) the Chapter 13 trustee assigned to the case; (e) the United States Bankruptcy Court where the case is pending; (f) the United States bankruptcy judge assigned to the case; (g) a United States Trustee; or (h) a legally authorized agent of any of the foregoing. For purposes of this Agreement, an entity ceases to be a party-in-interest 24 months after the Chapter 13 trustee files a final report in a case, and the NDC will not display or make available Chapter 13 Data after such date. Data relating to a closed case may be available directly from the applicable bankruptcy court or trustee.
2.6 Software Developer means the entity signing this Agreement, and any person who is an employee, agent, or subcontractor of Software Developer who has been authorized by a Party-in-Interest to access the NDC, Chapter 13 Data, or Data Services for processing or analyzing data on behalf of the Subscriber. 2.7 Subscriber means an entity that is a Party-in-Interest, who has (a) a current, effective Subscriber Access Agreement with the NDC, (b) authorized Software Developer to receive, view or access Chapter 13 Data pursuant to this Agreement, (c) a current, effective Party-In-Interest Access Authorization registered with NDC.
3. Term of this Agreement. This Agreement will continue to apply until terminated by either you or NDC as provided for in Section 10.
4. NDC Services.
4.1 NDC agrees to provide, and Subscriber agrees to use solely in a manner consistent with this Agreement, Chapter 13 Data that is furnished by Chapter 13 trustees to the NDC concerning the bankruptcy estate or the administration of the bankruptcy estate.
4.2 The Chapter 13 Data displayed on the Website will be limited to open and active Chapter 13 cases. Chapter 13 Data for a particular case will be removed from the Website within 24 months after the Chapter 13 Trustee files a final report in the case.
4.3 Website and Data Services: The Chapter 13 Data will be accessible by Subscriber through proper authentication. Subscriber will only be able to access a Chapter 13 case on the Website in cases where the Subscriber is the Attorney for the Chapter 13 debtor as shown in PACER. NDC will make every reasonable effort to ensure that the data displayed is timely.
5. Pricing and Payment. Pricing is currently complimentary for Debtor(s) and Debtor(s)’ Counsel for case information via the website; any other requested data or services may not be complimentary . NDC reserves the right to alter the pricing and payment schedule with appropriate notice.
6. Name ID Based Access and Portfolio. The NDC uses a name-ID system to create a portfolio of Chapter 13 data. This method uses identifiers created and maintained by Trustees (“Name ID”) that uniquely identifies any attorney as defined in Paragraph 2.4 of this Agreement. The NDC will assist the Subscriber in creating and maintaining this Name ID based access. In the event that the name-match-access system does not correctly allow party-in-interest access to a case, NDC may ask for additional Evidence Documentation such as a proof of claim or contract, which will assist NDC in determining party-in-interest. All decisions on granting or revoking access to Chapter 13 Data are final.
7. Limits on Subscriber’s Use of Website and Chapter 13 Data.
7.1 Permitted Uses. Subscriber certifies and warrants that it will only request and use Chapter 13 Data received from NDC in connection with the lawful and ethical administration of the Chapter 13 Bankruptcy Estate.
7.2 Security of Chapter 13 Data. Subscriber shall employ and maintain adequate security procedures to protect the confidentiality of Chapter 13 Data obtained from the NDC’s Website, and that Subscriber shall ensure that only employees or other individuals who are expressly authorized by Subscriber to use such Chapter 13 Data, and who have a legitimate need to access such Chapter 13 Data in performing his or her duties for Subscriber, will have access to such Chapter 13 Data (“Authorized Individuals”). In connection with its duty to protect the confidentiality of the Chapter 13 Data, Subscriber shall provide adequate training to Authorized Individuals regarding the requirements of this Agreement and Applicable Law; specifically, Subscriber shall ensure that Authorized Individuals: (1) are familiar with the requirements specified in this Agreement and agree to comply with such requirements; (2) agree to not disclose any password, identification number, or other means used to access Chapter 13 Data, to someone who is not an Authorized Individual; and (3) agree not to access or use the NDC Website except in performance of Authorized Individual’s official duties for Subscriber; (4) must have a unique Website credential this is not to be shared with any other Authorized Individuals. Subscriber shall further protect and ensure that personally identifiable information, as defined in 11 U.S.C. § 101(41A), contained in the Chapter 13 data is not disclosed, released or disseminated to any party other than allowed by this Agreement. Subscriber shall further protect and ensure that personally identifiable information as defined by state law is not disclosed, released or disseminated to any party other than allowed by this Agreement.
7.3 Limitation on Taking Legal Action Based on Chapter 13 Data. The NDC Data only contains data regarding the administration of a Chapter 13 case, and the NDC Website shall not be used by Subscriber to draw legal conclusions regarding a Chapter 13 case (i.e., whether the debtor is delinquent or has the debtor violated a stipulation or order). Therefore, Subscriber shall not take any legal action against a Chapter 13 debtor or Chapter 13 Standing Trustee, including the filing of any motion, pleading or other legal paper, based solely on information obtained from the Website.
7.4 Prohibited Uses of Chapter 13 Data. Subscriber shall not use Chapter 13 Data for any of the following purposes:
7.4.1 Obtaining any Chapter 13 Data regarding a Chapter 13 bankruptcy case in which Subscriber is not a Party-In-Interest;
7.4.2 Obtaining or using Chapter 13 Data in connection with potential credit extensions, insurance, employment, or the offering of other goods or services;
7.4.3 Obtaining or using Chapter 13 Data for marketing, solicitations, advertising or similar purposes;
7.4.4 Obtaining or using Chapter 13 Data for a purpose prohibited by law;
7.4.5 Annex or include a report obtained from the NDC in any motions or pleadings filed in bankruptcy court or any other court; and
7.4.6 Subscriber shall not transfer, sell, or distribute any Chapter 13 Data obtained from the Website to any other person or entity including a subsidiary, affiliate, or related entity of Subscriber.
7.5 Access to Chapter 13 Data Conveys No Right or Interest. The ability of a Subscriber to access Chapter 13 Data pursuant to this Agreement does not transfer by NDC any right or interest to Subscriber in any part of the NDC Website, the Chapter 13 Data obtained from this site, or the software used to access such Chapter 13 Data. The services and content on the NDC’s Website are and will continue to be NDC’s exclusive property. Except as permitted by this Agreement, Chapter 13 Data obtained from the NDC’s Website shall not be reproduced, sold, transferred, or modified without the express written permission of the NDC.
8. License. NDC grants Subscriber a license to use the software solely to access Chapter 13 Data on NDC’s Website, and for no other purpose. No ownership rights to the software are granted to Subscriber. Under no circumstances shall Subscriber sell, license, publish, display, distribute or otherwise transfer to any third party the Chapter 13 Data or software or any copy thereof, in whole or in part, without NDC’s prior written consent. The license to use the software provided for herein shall terminate upon the earlier of termination of this Agreement or upon Subscriber ceasing to utilize Chapter 13 Data on NDC’s Website.
9. Audit Rights. Subscriber shall maintain accurate and complete records to enable Subscriber to demonstrate full compliance with this Agreement. Subscriber will fully cooperate with NDC and will provide NDC access to such properties, records and personnel as NDC may reasonable require for such purposes.
10.1 NDC may terminate this Agreement at any time, with or without cause, by giving Subscriber either written or electronic notice, and the termination is effective upon NDC’s transmission of such notice. Termination of this Agreement concurrently terminates Subscriber’s right to access the Website. Subscriber shall have no claim against the NDC solely as a result of the termination of this Agreement. If Subscriber has prepaid for access to the Website, NDC will refund to Subscriber the pro rata amount of such access fee actually paid to NDC based on the number of days Subscriber could have accessed the Website if NDC had not terminated the Agreement. This shall be Subscriber’s sole remedy in the event of termination.
10.2 If the Agreement is terminated due to allegations that Subscriber has violated Section 7.4 of this Agreement, NDC may notify the affected debtor, the affected Trustee, the Federal Trade Commission, the United States Trustee, or other state or federal agency that has jurisdiction over Subscriber.
10.3 Subscriber may terminate this Agreement at any time, with or without cause, by giving NDC written notice, and the termination is effective upon Subscriber’s transmission of such notice to the NDC. Subscriber shall be responsible for all access fees owing through the effective date of the termination. NDC shall have no claim against Subscriber solely as a result of the termination of this Agreement.
11. Uncontrollable Force. Neither party shall be considered to be in default in the performance of any obligations under this Agreement when a failure of performance shall be due to uncontrollable force. The term “uncontrollable force” as used in the Agreement shall mean an unanticipated event which is not reasonably within the control of the affected party and which by exercise of reasonable due diligence such affected party could not reasonably have been expected to avoid, overcome or obtain or cause to be obtained a commercially reasonable substitute therefore. Such causes may include, without limitation, the following: flood, earthquake, tornado, storm, fire, explosion, public emergency, civil disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep the necessary authorizations or approvals from any governmental agency or authority; however no party shall be relieved of its obligations hereunder, if its failure of performance is due to removal or remedial causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of uncontrollable force shall give prompt notice of such fact, to be followed by written confirmation of notice, and shall exercise due diligence to remove such inability with all reasonable dispatch. As to the Subscriber, the term “uncontrollable force” does not include the unauthorized access of NDC data as a result of the Subscriber’s failure to properly secure their electronic data including without limitation to the Subscribers login and password, securing their premises, or securing any such device(s) that contains NDC data.
12. Disclaimers of Warranty. All Chapter 13 case information provided on the NDC website is transmitted electronically to the NDC by individual case trustees. Data is updated on a regular basis. Neither the NDC or individual case trustees shall be responsible for any errors contained in the data or as a result of a delay in transmitting the data. NDC warrants that it will use commercially reasonable efforts to make the Chapter 13 Data available to Subscriber on the Website. This is the only warranty NDC has given Subscriber with respect to the services, and such warranty is in lieu of all other warranties, express or implied, including, for example and without limitation, warranties of merchantability or fitness for a particular purpose.
13. Compliance with Laws, Limitation of Liability, and Indemnification.
13.1 Subscriber and NDC agree to comply with all Applicable Laws in performing their obligations under this Agreement.
13.2 Subscriber shall indemnify, hold harmless, and defend NDC, as well as NDC’s employees, Board of Directors, officers, and agents and any affected Chapter 13 Trustee, at Subscriber’s sole expense, against every claim, suit, proceeding, judgment, penalty, fine or expense brought against or imposed upon NDC for any violation of any Applicable Law or of any provisions in this Agreement by Subscriber, or any employee, agent, or subcontractor of Subscriber. In no event shall Subscriber enter into any settlement or order that would be binding on NDC or any affected Chapter 13 Trustee without NDC’s written consent.
13.3 NDC shall have no obligation or liability to Subscriber for any claim, injury, or damage arising out of or resulting from Subscriber’s use of or inability to use the software to access Chapter 13 Data on NDC’s Website.
13.4 Notwithstanding any other provision of this Agreement, under no circumstance shall NDC be liable for any incidental, indirect, consequential, or special damages incurred by Subscriber (including damages for lost business, lost profits or damages to business reputation), regardless of how such damages arise.
14. Waiver. Either party may at any time waive compliance by the other with any condition or provision in this Agreement, but only if such waiver is in writing and signed by the authorized representative of the party waiving its rights, and only for the specific matter covered therein. Either party’s failure to require strict performance of any condition or provision in this Agreement shall not be construed as a waiver by that party of such performance.
15. Binding Arbitration. Any controversy or claim arising out of or relating to this Agreement, or its breach, will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), as modified as follows: (1) Arbitration will be initiated by filing a demand at the Delaware Regional Office of the AAA; (2) Disputes will be heard and determined by a panel of three arbitrators. One arbitrator will be appointed by each Party to serve on the panel. One neutral arbitrator will be appointed by the AAA and shall serve as chairperson of the three-arbitrator panel; (3) Any communication between a Party and any arbitrator will be directed to the AAA for transmittal to the arbitrator. The Parties expressly agree that the arbitrators will be empowered, at a Party's request, to grant injunctive relief; (4) Any Party to an arbitration may petition a California court to confirm, correct, or vacate the award on the grounds stated in the Federal Arbitration Act; (5) Nothing in this Article will prevent any Party from seeking injunctive relief against the other Party from any judicial or administrative authority pending the resolution of a controversy or claim by arbitration; (6) The prevailing Party shall be entitled to be awarded, as an element of the costs of arbitration and not as damages, reasonable attorneys' fees to be fixed by the arbitrator (including, without limitation, costs, expenses, and fees); and (7) The Parties shall have the right to take discovery of the other Party by any or all methods provided in the Federal Rules of Civil Procedure. On request, the arbitrators may exclude any evidence not made available to the other Party pursuant to a proper discovery request from being used in the arbitration proceeding. The parties agree to use good faith efforts to resolve any disputes prior to initiating arbitration. Any legal claim, suit, proceeding, or action brought against NDC arising out of, or relating to, this Agreement, shall be brought before a state or federal court in the state of California.
16. Successors and Assigns. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. This Agreement may not be assigned, transferred, shared, or divided in whole or in part by Subscriber without NDC’s prior written consent.
17. Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the NDC and Subscriber concerning the services discussed herein, and supersedes any prior or contemporaneous oral or written discussions, agreements or representations. No discussions, terms, agreements, or representations purporting to modify, supplement, explain or amend any provisions of this Agreement shall be effective unless in writing and signed by the NDC and Subscriber representatives authorized to amend this Agreement.
18. Third Party Beneficiaries. Nothing in the Agreement shall provide any benefit to any third party or entitle any third party to any claim, cause of action, or remedy of any kind, it being the intent of the parties that this Agreement shall not be construed as a third party beneficiary contract.
19. Copy of Agreement to United States Trustee. Pursuant to a written request, NDC will provide the United States Trustee with a copy of this Agreement.
20. Relationship of Parties. NDC and Subscriber are separate entities under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between NDC and Subscriber. Neither party has authority to enter into agreements of any kind on behalf of the other party.
21. Notices. Any notice to be given hereunder by either party to this Agreement shall be in writing and may be transmitted by mail or electronic delivery to the representative of the other party at the address set forth below, or to such other addresses as a party may designate by notice to the other: David Shapiro Subscriber at email address or physical address National Data Center listed as stored in NDC Website “Account Settings” 3595 Mt. Diablo Blvd., Suite 270 Lafayette, CA 94549 email@example.com
22. Good Faith. The parties agree to act in good faith with respect to each provision of this Agreement and any dispute that may arise related hereto.
23. Severability. In the event one or more provisions in this Agreement are held to be unenforceable or void, that provision will be deemed severed, and the remainder of the Agreement will remain in effect. By accepting electronically (for example, clicking “I Agree”), accessing or using the NDC Services, or NDC Website, you agree to be bound by the terms and conditions of this Agreement. You also agree to provide a physical address to NDC by filling in the Business Contact Information on the “Account Settings” page of NDC Website. If you do not agree to this Agreement, then you may not use the NDC Services or NDC Website.