These Promotion and Marketing Services Terms (“Terms”) are entered into by The Tech Law Group, P.C. (“Tech Law”) and the entity executing these Terms or that accepts these Terms electronically as part of the Statement of Work (“Client”) (together, the “Parties”, and each, a “Party”). These Terms govern Client’s procurement relationship under which Tech Law will provide Client with certain Deliverables and Services described in the Statement of Work. In consideration of the foregoing, the Parties agree as follows:
1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law, in equity or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities of a person, by contract or otherwise.
“Agreement” means these Terms together with the SOW.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks in San Diego, California are authorized or required by Law to be closed for business
“Campaign” means the design and management of a promotional and marketing campaign for the Client’s legal services.
“Claim” means an Action brought against a Person entitled to indemnification under Section 7 of this Agreement.
“Client Intellectual Property” means any Intellectual Property owned by or licensed to Client.
“Client Materials” means proprietary information, documents, samples, products and other materials of Client.
“Deliverables” means all documents, work product and other materials delivered to Client by or on behalf of Tech Law for the Campaign or while performing the Services.
“Effective Date” means the date the SOW is last signed by either Party.
“Governmental Authority” means any federal, state, local, foreign or supranational government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (if the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
“Intellectual Property” means all trade secrets, Trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any Person holds proprietary rights, title, interests or protections, however arising, under the Laws of the US, including all applications, registrations, renewals, issues, reissues, extensions, divisions and continuations in connection with any of the foregoing and the goodwill connected with using and symbolized by any of the foregoing.
“Knowledge” of a Party means the actual knowledge of any director or officer of such Party.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, other requirement or rule of law of any Governmental Authority.
“Losses” means losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.
“Personnel” of a Party means any agents, employees or subcontractors engaged or appointed by the Party.
“Pre-Existing Materials” means any documents, data, know-how, methodologies, domain names, website addresses, websites, servers, URLs, software and other materials, including computer programs, reports and specifications, provided by or used by Tech Law in connection with performing the Services, in each case developed or acquired by Tech Law prior to the commencement or independently of this Agreement.
“Referred Client” is a Person who contacts Client through a PPC campaign and who enters into an attorney engagement agreement for Client’s services. Tech Law will be regarded as the “procuring cause” of a Referred Client, so as to be entitled to a Referal Fee, if a Person submits a form on the micro-site and/or contacts Client using a unique phone number shown only on the micro-site.
“Representatives” means a Party’s Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns.
“Services” means the services described in the SOW.
“Statement of Work” or “SOW” means a document labeled as such that is signed by both Parties and which references this Agreement. The SOW describes the Deliverables and/or Services to be provided under this Agreement, the specifications, prices, and other terms and conditions applicable to those Deliverables and/or Services.
“Trademarks” means all rights in US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names, and other similar designations of source, sponsorship, association or origin, with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
2. Tech Law Services and Responsibilities.
2.1 Tech Law Services. Tech Law will use commercially reasonable efforts to provide the Services to Client under this Agreement and in a professional and diligent manner consistent with industry standards and good business practice, using efforts comparable to those customarily used in promotional campaigns of equivalent value and for similar services.
2.2 Tech Law Contract Manager and Personnel.
(a) Tech Law will:
(i) appoint an employee to serve as the primary contact regarding this Agreement and who will have the authority to act on behalf of Tech Law for matters pertaining to this Agreement (the “Tech Law Contract Manager”); and
(ii) hire, supervise, direct and discharge all employees, consultants and independent contractors (collectively, the “Tech Law Personnel”) necessary to perform the Services, each of whom will be suitably skilled, experienced and qualified.
(b) Tech Law will handle the payment of all compensation owed to Tech Law Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.
2.3 Tech Law Proposal. Prior to their public release, Tech Law will submit to Client for approval any materials that Tech Law proposes be displayed, published, reproduced, distributed or otherwise made publicly available as part of the Campaign launch. Within five (5) Business Days after receiving a submission and request for approval from Client, Client will provide Tech Law with written notice approving or disapproving the materials. If the Client does not deliver written approval within five (5) Business Days, the submission will be deemed approved.
2.4 Status Reports. For each Service, Tech Law will provide monthly written status reports, including written confirmation of completion of each Service.
2.5 Meetings with Client. On Client’s reasonable request, the Tech Law Contract Manager will attend, and will cause any Tech Law Personnel to attend, telephonic quarterly meetings with Client Contract Manager (or its designee) to discuss the Services or the Campaign.
2.6 Restrictions on Expenditures. Subject to Section 5.1, Tech Law will not incur cost or make expenditure over the approved Google AdWords and Bing ads budget with the Campaign or any Service without Client’s prior written approval.
3. Client Obligations and Responsibilities.
3.1 Client will use commercially reasonable efforts to:
(a) Provide copies of or access to such Client Materials as Tech Law may reasonably request to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects; provided, however, that Client and its licensors are, and will remain, the sole and exclusive owner of all right, title and interest in all Client Materials, including all Intellectual Property therein; Tech Law will have no right or license to use any such information or materials other than during the Term to provide the Services to Client; and all other rights in the Client’s Materials are reserved by Client.
(b) Respond promptly to any Tech Law request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Tech Law to perform the Services under the requirements of this Agreement.
4. Intellectual Property Rights; Ownership.
4.1 License to Certain Client Intellectual Property.
(a) Subject to and under the terms and conditions of this Agreement, Client grants Tech Law and its Affiliates a limited, non-exclusive, royalty-free, non-transferable and non-sublicensable, worldwide license during the Term to use, solely for the Services: (i) Client’s Trademarks; and (ii) Client’s domain names, website addresses, websites and URL’s.
(b) Client grants no other right or license to any Client Intellectual Property to Tech Law by implication, estoppel or otherwise. Tech Law acknowledges that Client owns all right, title and interest in, to and under the Client’s Trademarks and that Tech Law will not acquire any proprietary rights therein. Any use by Tech Law or any Representative of Tech Law of any of Client’s Trademarks and all goodwill associated therewith will inure to the benefit of Client.
4.2 Ownership of and License to Deliverables.
(a) Except as set forth in Section 4.2(c), Client is, and will be, the sole and exclusive owner of all right, title and interest in the Deliverables, including all Intellectual Property therein. Tech Law agrees, and will cause Tech Law Personnel to agree, that regarding any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are deemed a “work made for hire” for Client. If any of the Deliverables do not constitute a “work made for hire,” Tech Law irrevocably assigns, and will cause the Tech Law Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title and interest throughout the world in the Deliverables, including all Intellectual Property therein. Tech Law will cause the Tech Law Personnel to irrevocably waive, to the extent permitted by applicable Law, all claims such Tech Law Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral regarding the Deliverables.
(b) Upon the reasonable request of Client, Tech Law will, and will cause the Tech Law Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect or record its rights in or to any Deliverables.
(c) Tech Law and its licensors are, and will remain, the sole and exclusive owners of all right, title and interest in the Pre-Existing Materials, including all Intellectual Property therein. Tech Law grants Client and its Affiliates a perpetual, limited, royalty-free, non-transferable (except under Section 11.12), non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in the Pre-Existing Materials are reserved by Tech Law.
5. Fees and Expenses; Payment Obligations.
5.1 Fees and Expenses.
(a) In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client will pay Tech Law the fees described in the Fee Summary section of the SOW for the Services, which amount will be inclusive of any costs of materials or other expenses of Tech Law in providing such Services. If Client selects Option B with the referral fee, these additional terms apply:
(i) In consideration for the Services rendered by Tech Law hereunder, Client will pay to Tech Law additional compensation (“Referral Fee”) on the Benefit Received by each Referred Client introduced by Tech Law to Client hereunder at the percentage rate listed in the SOW.
(ii) Client will invoice Referred Clients directly and, upon receipt of payment from the Referred Client, any Referral Fees due under this Agreement will be calculated and distributed on or before the last day of the calendar month that the payment was received from the Referred Client.
(iii) Compliance with California Disciplinary Rules of Professional Conduct. Any division of fees shall be governed by California State Bar Rules of Professional conduct (2015), Rule 2-200 in that the total fee charged to a Referred Client must be reasonable and, in accordance with paragraph (A) of the Rule:
(1) The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division; and
(2) The total fee charged by all lawyers is not increased solely by reason of the provision for division of fees and is not unconscionable as that term is defined in rule 4-200.
For clarification purposes, a division of fees is a sharing of a single billing to a client between two or more lawyers who are not in the same firm.
(iv) Client agrees to include a disclosure substantially similar to the following in its attorney retainer agreement with any Referred Client:
DIVISION OF ATTORNEY FEES (Attorney to Attorney Referrals): In full compliance with California State Bar Rule 2-200, information was discussed and disclosed between attorney and client concerning the client’s choice in retaining attorney. It is understood that the client was referred to and/or otherwise provided with our name, or the name of an attorney who is a member of this firm, by another attorney or law firm. That in this case, attorney intends to divide up to (10%) of its attorney fees with The Tech Law Group, P.C. at the conclusion. The legal fees charged to the client by attorney are not increased by the above-indicated referral or anticipated division of attorney fees. After full disclosure of the intended division of attorney fees, and after being informed that the intended division of attorney fees will not increase the legal fees client will be charged and will not decrease or in any other way detrimentally affect the client’s recovery, the client consents to the division. The client also consents to attorney providing the referring attorney with responsible case status updates.
(b) Client agrees to directly pay Google and Microsoft (Bing) for all pay-per-click advertising costs charged to Client’s account.
(c) Payment to Tech Law of the fees in Section 5.1(a) and the payment of expenses under Section 5.1(b) will constitute payment in full for performing the Services, and Client will pay no other fees, costs or expenses.
5.2 Payment.
(a) Client agrees to provide a valid method of payment (credit card or other pre-arranged payment method) prior to and during any time Client receives Services. The renewal fees will be due three (3) full days prior to the recurring effective date of the Renewal Period, and will be automatically debited from Client’s credit card prior to that date. Tech Law will provide monthly receipts to Client for the fees that were charged for the prior period. Client agrees that Tech Law will require no additional authorization for any recurring payments or automatic billing options.
(b) Accounts are considered in default if the payment is not received within three (3) days after the effective date of the Renewal Period. Tech Law may suspend or terminate use of the Services if Client fails to provide a valid designated payment method upon request, or if Tech Law cannot bill charges to Client’s designated payment method. If the payment is over five (5) days past due, Client will be liable for any fees Tech Law incurs in its efforts to collect any unpaid balances.
(c) Google and Bing will automatically charge Client’s credit card on file when Client’s balance reaches $500.00 or 30 days after Client’s last automatic payment, whichever comes first. The billing threshold may initially be set at a lower amount. Each time Client’s account hits its threshold before the 30-day billing cycle has ended, the threshold increases, up to the highest threshold. Note that the amount billed may be slightly over the threshold if the account accrues costs quickly.
(d) If Client has billing-related questions or wants to stop a recurring payment from being charged to the designated payment method, Client should contact Tech Law’s support number (619.881.2305).
5.3 Taxes. All expenses payable by Client under this Agreement are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on such amounts. Client will be responsible for all such charges, costs and taxes, except for any taxes imposed on, or regarding, Tech Law’s income, revenues, gross receipts, personnel or real or personal property or other assets.
5.4 Invoice Disputes. Client will notify Tech Law in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) within thirty (30) days from Client’s receipt of such invoice. Client will be deemed to have accepted all invoices for which Tech Law does not receive timely notification of dispute, and will pay all undisputed amounts due under such invoices within the period in Section 5.2. The Parties will seek to resolve all such disputes expeditiously and in good faith.
5.5 Late Payments. Except for invoiced payments that Client has successfully disputed, Client will pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable Law.
6. Representations, Warranties and Certain Covenants.
6.1 Mutual Representations, Warranties and Covenants. Each Party represents, warrants and covenants to the other that:
(a) it is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its organization;
(b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for this Agreement, unless failing to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
(c) it has the full right, power and authority to enter this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(d) it has not, and during the Term will not, enter any oral or written contract or negotiations with any third party that would impair the rights granted to the other Party under this Agreement, or limit the effectiveness of this Agreement, nor is it aware of any claims or actions that may limit or impair any of the rights granted to the other Party hereunder;
(e) the execution of this Agreement by its Representative whose signature is set forth at the end and the delivery of this Agreement by the Party has been duly authorized by all necessary corporate action of the Party;
(f) this Agreement has been executed and delivered by such Party and (assuming due authorization, execution and delivery by the other Party) constitutes the legal, valid and binding obligation of such Party, enforceable against such Party under its terms; and
(g) it is now and through the Term will remain in compliance with all Laws applicable to the performance of its obligations under this Agreement unless such failure would not, in the aggregate, reasonably be expected to have a material adverse effect on the other Party’s business.
6.2 Tech Law Representations, Warranties and Covenants. Tech Law represents, warrants and covenants to Client that:
(a) it has, or will obtain and will maintain in full force and effect during the Term, all necessary licenses, permits, consents and authorizations as may be reasonably necessary for the Campaign and provision of the Services;
(b) it will materially comply with, and ensure that all Tech Law Personnel comply with, all specifications, rules, regulations and policies of Client communicated to Tech Law in writing;
(c) Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;
(d) to the Knowledge of Tech Law, none of the Services, Deliverables or client’s use thereof infringe or will infringe any registered Intellectual Property of any third party arising under the Laws of the United States, and, as of the date hereof, there are no pending or, to Tech Law’s knowledge, threatened claims, litigation or other proceedings pending against Tech Law by any third party based on an alleged violation of such Intellectual Property, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications or other materials provided by Client to Tech Law, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Tech Law, if the infringement would have been avoided by the use of the Deliverables not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any Person other than Tech Law. Tech Law’s sole liability and Client’s sole and exclusive remedy for Tech Law’s breach of this Section 6.2(d) are Tech Law’s obligations and Client’s rights under Section 7.2; and
(e) to the Knowledge of Tech Law, no Deliverables provided in electronic form by Tech Law to Client contain or will contain any (i) trojan horse, worm, backdoor or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a Person other than an authorized licensee or owner of a copy of the program or the right and title in the program.
6.3 Client Representations, Warranties and Covenants. Client represents, warrants and covenants to Tech Law that:
(a) it has provided Tech Law with a copy of any applicable internal policies or procedures and a written description of any specifications or other requirements or restrictions applying to any of the Services or the Campaign; and
(b) it has, or will obtain and will maintain throughout the Term, all rights, licenses and consents required with the Campaign, including any such right or licenses required to lawfully use, and to authorize Tech Law to use, any Client Intellectual Property or Client Materials provided to Tech Law for use in connection with the Campaign.
6.4 NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 6, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6 OF THIS AGREEMENT.
7. Indemnification.
7.1 Client Indemnification Obligations. Client will defend, indemnify and hold harmless Tech Law, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns (collectively, “Tech Law Indemnified Party”), against all Losses arising out of or resulting from any third-party Claim or direct Claim alleging:
(a) material breach by Client or its Personnel of any representation, warranty, covenant or other obligations in this Agreement;
(b) gross negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct) for the performance of its obligations under this Agreement; and
(c) that any Client Materials or Client Intellectual Property or Tech Law’s receipt or use thereof under the terms of this Agreement infringes any Intellectual Property of a third party arising under the Laws of the United States.
7.2 Tech Law Indemnification Obligations. Tech Law will defend, indemnify and hold harmless Client, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns (collectively, “Client Indemnified Party”), against all Losses, arising out of or resulting from any third-party Claim or direct Claim alleging:
(a) material breach by Tech Law or its Personnel of any obligations in this Agreement;
(b) gross negligence or more culpable act or omission of Tech Law or its Personnel (including any recklessness or willful misconduct) for the performance of its obligations under this Agreement; and
(c) that any of the Services or Deliverables or Client’s receipt or use thereof under the terms of this Agreement infringes any Intellectual Property of a third party arising under the Laws of the United States.
7.3 Exceptions and Limitations on Indemnification.
(a) Notwithstanding anything to the contrary in this Agreement, neither Party must indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting from the other Party’s:
(i) willful, reckless or negligent acts or omissions; or
(ii) bad faith failure to materially comply with any of its material obligations in this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, Client will have no obligations to indemnify or defend Tech Law or any of its Representatives against any Losses arising out of or resulting from infringement claims relating to:
(i) any Deliverables or any instruction, information, designs, specifications, or other materials provided by Tech Law in writing to Client;
(ii) Tech Law’s use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Tech Law or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or
(iii) any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any Person other than Client or Client Personnel.
(c) Notwithstanding anything to the contrary in this Agreement, Tech Law will have no obligations to indemnify or defend Client or any of its Representatives against any Losses arising out of or resulting from infringement claims relating to:
(i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Tech Law;
(ii) Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Tech Law in writing, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Tech Law not so combined; or
(iii) any modifications or changes made to the Deliverables by or on behalf of any Person other than Tech Law or Tech Law Personnel.
7.4 Indemnification Procedures. A party seeking indemnification under this Section 7 (the “Indemnified Party”) will give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the claim; provided, however, that failure to provide such notice will not relieve the Indemnifying Party from its liability or obligation hereunder except for any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party may control the defense and settlement of any such claim; provided, however, that the Indemnifying Party will not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party may participate in the defense at its own expense.
7.5 EXCLUSIVE REMEDY. THIS SECTION 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 7.
8. Limitation of Liability.
8.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR BREACH OF CONFIDENTIALITY, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO TECH LAW PURSUANT TO THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS.
9. Confidentiality. Occasionally during the Term, either Party (as the “Disclosing Party”) may disclose or provide to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than because of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) must be disclosed under applicable Law. The Receiving Party will, for three (3) years from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party will be responsible for any breach of this Section 9 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, the Receiving Party and its Representatives will, under Section 10.3, promptly return all Confidential Information and copies thereof that it has received under this Agreement.
10. Term; Termination.
10.1 Term. This Agreement and Client’s use of the Services and Deliverables will become effective on the date the SOW is countersigned by Client (“Effective Date”). The period of performance of this Agreement (“Term”) will commence on the Effective Date and will automatically renew for additional like periods (each a “Renewal Period”) under the same terms and conditions as agreed, which may be amended from time to time, unless either Party provides the other Party with notice of termination (refer to account cancellation instructions below) at least thirty (30) days prior to any Renewal Period. The Services will continue to renew automatically unless terminated by Tech Law or until Client provides notice of its intent to change its Services renewal.
10.2 Termination for Cause.
(a) Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party”) if the Defaulting Party:
(i) materially breaches this Agreement, and such breach is incapable of cure, or regarding a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), which is separately addressed in Section 10.2(b), the Defaulting Party does not cure such breach within ten (10) Business Days after receipt of written notice of such breach;
(ii) becomes insolvent or is generally unable to pay its debts as they become due;
(iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
(iv) makes or seeks to make a general assignment for the benefit of its creditors;
(v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
(vi) is dissolved or liquidated; or
(vii) is unable to perform its obligations under this Agreement due to a Force Majeure Event that lasts for over ten (10) consecutive Business Days.
(b) Tech Law may terminate this Agreement, effective upon written Notice to Client if:
(i) a Payment Failure by Client continues for five (5) Business Days after Client’s receipt of written notice of nonpayment; or
(ii) within any a twelve (12) month period, two (2) or more Payment Failures occur.
10.3 Effect of Expiration or Termination.
(a) Expiration or termination of this Agreement will not affect any rights or obligations that:
(i) are to survive the expiration or earlier termination of this Agreement;
(ii) were incurred by the Parties prior to such expiration or earlier termination; and
(iii) Tech Law will continue to be entitled to all Referral Fees earned prior to such termination and that accrue beyond termination for the duration of each Referred Client’s matter with Client.
(b) Upon the expiration or termination of this Agreement for any reason, each Party will promptly:
(i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
(ii) permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies maintained as archive copies on its disaster recovery or information technology backup systems, which it will destroy upon the normal expiration of its backup files; and
(iii) certify in writing to the other Party it has complied with the requirements of this clause.
(c) Upon expiration or termination of this Agreement for any reason, Tech Law will:
(i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials;
(ii) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate service provider; and
(iii) on a pro rata basis, repay any fees and expenses paid in advance for any Services or Deliverables not provided.
(d) Client will not be liable for any Tech Law Personnel termination costs arising from the expiration or termination of this Agreement.
(e) Subject to Section 10.4(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, will not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise.
11. Miscellaneous.
11.1 Further Assurances. Upon a Party’s reasonable request, the other Party will, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
11.2 Entire Agreement. This Agreement, including the related SOW, constitutes the sole and entire agreement of the Parties regarding the subject matter contained and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
11.3 Survival. Subject to the limitations and other provisions of this Agreement, (a) Section 6 (Representations, Warranties and Certain Covenants) will survive the expiration or earlier termination of this Agreement for twelve (12) months after such expiration or termination; and (b) Section 5 (Fees and Expenses; Payment Obligations), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality), Section 10 (Term; Termination), and Section 11 (Miscellaneous), of this Agreement, and any other provision that, to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for twelve (12) months after such expiration or termination. No lawsuit or other action based upon or arising out of this Agreement may be brought by either Party after the expiration of the survival period; provided, however, that any claims asserted in good faith with reasonable specificity and in writing by Notice prior to the expiration of the survival period are not thereafter barred by the expiration of the relevant period, and such claims survive until finally resolved.
11.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications (each, a “Notice”) will be in writing and addressed to the parties at the addresses on the first page of this Agreement (or to such other address that may be designated by the receiving party occasionally under this section). All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 11.4.
11.5 Interpretation. For this Agreement, (a) the words “include,” “includes” and “including” are deemed followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified occasionally to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended occasionally and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The SOW and any exhibits, schedules, attachments and appendices referred to are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
11.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
11.7 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will affect no other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties will negotiate in good faith to modify this Agreement to effect the original intent of the Parties closely in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.8 Amendment and Modification. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized Representative of each Party.
11.9 Waiver.
(a) No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized Representative of the Party waiving its right.
(b) Any waiver authorized once, is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
(c) None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:
(i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or
(ii) any act, omission or course of dealing between the Parties.
11.10 Cumulative Remedies. Except as set forth in Section 7, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
11.11 Equitable Remedies. Each Party agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) if a breach occurs or a threatened breach by such Party of any such obligations, the other Party will, besides all other rights and remedies that may be available to such Party at law, at equity or otherwise regarding such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, with no requirement to post a bond or other security, and with no requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with this Section 11.11.
11.12 Assignment. Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement to an Affiliate, a successor-in-interest by consolidation, merger or operation of law or to a purchaser of all or substantially all of the Party’s assets. No assignment will relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing will be null and void. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.
11.13 No Third-party Beneficiaries.
(a) Subject to Section 11.13(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature under or by this Agreement.
(b) The parties designate the Client Indemnified Parties and Tech Law Indemnified Parties as third-party beneficiaries of Section 7 having the right to enforce Section 7.
11.14 Choice of Law. This Agreement, including all documents and exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, will be governed by, and construed under, the Laws of the State of California, United States of America without giving effect to any conflict of laws provisions thereof.
11.15 Commercial Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The parties also agree that the AAA Optional Rules for Emergency Measures of Protection will apply to the proceedings. The award and judgment rendered by the arbitrator will be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located. There will be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA under its Commercial Rules. If more than one arbitration is commenced under this Agreement and any party contends that two or more arbitrations are substantially related and that the issues should be heard in one proceeding, the arbitrator selected in the first-filed proceeding will determine whether, in the interests of justice and efficiency, the proceedings should be consolidated before that arbitrator. The seat or place of arbitration will be San Diego, CA. The arbitration will be conducted and the award will be rendered in English. Except as required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator will have no authority to award punitive damages, consequential damages, liquidated damages, or compensatory damages exceeding the limitation of liability in Section 8.
11.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
11.17 Force Majeure.
(a) No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation:
(i) acts of God;
(ii) flood, fire or explosion;
(iii) war, invasion, riot or other civil unrest;
(iv) actions, embargoes or blockades in effect on or after the date of this Agreement;
(v) national or regional emergency;
(vi) strikes, labor stoppages or slowdowns or other industrial disturbances;
(vii) compliance with any Law or Governmental Order, rule, regulation or direction, or any action taken by a Governmental Authority;
(viii) shortage of adequate power or telecommunications or transportation facilities; or
(ix) any other event which is beyond the reasonable control of such party (each of the foregoing, a “Force Majeure Event”).
A party whose performance is affected by a Force Majeure Event will give Notice to the other party, stating the period of time the occurrence is expected to continue and will use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
(b) During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until the affected Party resumes performance.
(c) The non-affected Party may terminate this Agreement if such failure or delay continues for 30 days or more and, if the non-affected Party is Client, receive a refund of any amounts paid to Tech Law in advance for Services not yet provided. Unless this Agreement is terminated under this Section 11.17, the Term of this Agreement will be automatically extended by a period equal to the period of suspension.
11.18 Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Tech Law is an independent contractor under this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
11.19 Public Announcements. Neither Party will make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotion materials regarding the other Party or its business unless: (a) it has received the express written consent of the other Party; or (b) it must do so by Law; provided, however, Client agrees any publicly-available customized landing page may be included in Tech Law’s portfolio.
11.20 Reports, Records and Audit (Only if Option B Selected in SOW). For five (5) years from the date a Referred Client enters an engagement agreement with Client, Client will keep complete and accurate records of any Benefit Received from such Referred Client for the calculation of Referral Fees to be made to Tech Law. On or before January 31, April 30, July 31, and October 31 of each year, Client will provide Tech Law with a statement (“Referred Client Statement”) showing the name and total number of Referred Clients; the total Benefit Received by each Referred Client in the prior quarter; the method used to calculate the Referral Fees; and such other particulars as are reasonably necessary for an accurate accounting of the Referral Fees due under this Agreement. Tech Law, at its own expense, may within two (2) years after receiving any Referred Client Statement, nominate an independent Certified Public Accountant (“Auditor”) who will have access to Client’s records during Client’s normal business hours to verify all payments payable or made under this Agreement. Tech Law will provide to Client a copy of the Auditor’s audit report within ten (10) Business Days of Tech Law’s receipt of the report. If the report shows that payments made by Client are deficient, Client will pay Tech Law the deficient amount plus interest on the deficient amount, as calculated under Section 5.5, within fifteen (15) Business Days after Client’s receipt of the audit report. If payments made by Client are deficient by over three percent (3%), Client will pay for the cost of the audit.