Agreement Terms 2012
Change in Fees: LBM has the sole right and discretion to change the amount of fees at any time. LBM will give notice prior to any changes in fees.
Marketing communications: Participant agrees to receive limited marketing communications from Legal Brand Marketing in the form of emails and/or other methods of communication. If Participant wishes to unsubscribe, he/she may do so at any time within an email sent by Legal Brand Marketing.
Warranties: LBM warrants to Participant that all Services provided hereunder will be performed in a professional manner consistent with industry practices. Neither LBM nor any affiliate, parent company or subsidiary makes any other warranties of any kind regarding the Services or otherwise, either expressed or implied, including, without limitation, (a) warranties or merchantability or fitness for a particular purpose, (b) that the delivery of any DUI Contacts will be error free, (c) as to the results that may be obtained as a result of LBM’s and/or Participant’s marketing efforts, or (d) that any Web site will be continuously available.
In addition, LBM does not warrant that Participant’s participation complies with any specific state’s ethical obligations regarding the practice of law. LBM makes no warranties, express or implied, as to the ethics of participation in the marketing program, and expressly disclaims any liability in connection therewith. LBM understands that Participant either has or will consult with ethics counsel and will operate in accordance with the advice of such counsel.
Breach of Participant’s obligations: If Participant breaches any of its obligations under this Agreement, including the failure to timely pay any fees or other monies owed, LBM shall be permitted, at its sole discretion, to do any or all of the following (it being understood that such remedies are not exclusive of one another or any other remedies LBM may have at equity or law): (1) terminate this Agreement without notice, in which case fees shall remain due and owing to LBM for all services provided prior to the date of termination; (2) temporarily suspend this Agreement without notice (it being understood that LBM shall retain the right to reinstate this Agreement at any time in it’s sole discretion); (3) for unpaid Fees, assess interest at the maximum amount allowed by law; and/or (4) collect from Participant reimbursement for all costs, including attorneys’ fees, incurred by LBM in collecting any fees or other monies owed to it by Participant, or otherwise enforcing its rights under this Agreement.
Privacy and use of DUI Contact Identifying Information: Participant agrees not to sell, transfer, license, sublicense or otherwise disseminate any information gathered by LBM pursuant to this Agreement (including, without limitation, with respect to any DUI Contact), except to the limited extent Participant may do in order to retain or attempt to retain this DUI Contact as a client. Nothing in this Section shall be construed to restrict or otherwise affect in any way Participant’s relationship with any of its clients, and Participant retains full and sole discretion in respect of decisions regarding clients and legal advice provided to clients. In addition, Participant agrees that it will not use any Identifying Information from LBM for any use outside of retaining or attempting to retain the DUI Contact as a client. Specifically, Participate will not sell, transfer, license, sublicense or otherwise disseminate any Identifying Information or data LBM sent as a DUI Contact to any third party for the purposes of sending unsolicited information including, but not limited to, chain letters, junk mail, email newsletters or blasts, email “spamming,” telephone solicitations, or as a basis for any use or distribution lists to any person. Participant further agrees not to use DUI Contact Identifying Information from LBM to send any messages or materials that are unlawful, considered an act(s) against public policy, discrimination of any kind, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, international law or regulation. LBM reserves the right to terminate Participant’s account immediately and without notice, if it becomes aware or determines, in its sole discretion, that Participant is violating any of the foregoing guidelines.
LBM’s Intellectual Property: LBM shall at all times retain sole and exclusive ownership of, or, as applicable, sole and exclusive rights as a Participant or sublicense of, all of copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property employed in providing these cooperative services to Participant. This Agreement shall not be construed to convey, assign, sell or transfer any copyrighted, trademarked, or other material that LBM does not have the right to convey or assign or which is otherwise not specifically identified herein.
LBM may provide Participant with proprietary software, code or other similar materials solely in connection with providing the services hereunder. Subject to the terms and conditions of this Agreement, LBM grants to Participant a world-wide, revocable, non-exclusive, non-transferable, non-sublicensable, limited use license to access and use the such software or other materials solely in connection with Participant’s business and solely to the extent expressly set forth in this Agreement. Such license shall immediately expire upon expiration of the Term or termination of this Agreement by either party for any reason.
Infringement of Intellectual Property Rights: Participant acknowledges and agrees that the Site and any necessary software used in connection with the Site may contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Nothing in this Agreement grants or should be construed to grant any rights, by implication, estoppel or otherwise, under copyright or other intellectual property rights. Participant agrees that all right, title and interest (including all copyrights, trademarks, service marks, patents and other intellectual property rights) in this Site and its content belong to LBM. No part of the materials including graphics or logos, available in this Site may be copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, without specific permission. Except as expressly authorized by us, you further agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Site or the software, in whole or in part. Further, Participant grants to LBM a non-exclusive license to use the Participant Content, as well as any other copyrights, trade names and/or trademarks of Participant, solely to the extent necessary for LBM to provide the services contemplated by this Agreement (which includes, without limitation, (i) the right to make copies, create illustrations, display personal and/or corporate name(s), and display other pictures and materials, and (ii) for purposes of promoting LBM to the public and other potential customers). Such license shall include the right of LBM’s employees, agents and contractors to view Participant Content for administrative purposes.
Confidentiality: LBM and Participant each agree to treat as confidential all confidential information of the other party, not to use such confidential information except as set forth herein and not to disclose such confidential information to any third party except as may be reasonably required to pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of confidential information disclosed to it by the other party under this Agreement, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. Notwithstanding the foregoing, neither party hereto shall have liability to the other with regard to any confidential information of the other which: (i) was in the public domain at the time it was disclosed or enters the public domain through no fault of the receiver; (ii) was known to the receiver, without restriction, at the time of disclosure as shown by the files of the receiver in existence at the time of disclosure; (iii) is disclosed with the prior, written approval of the discloser; (iv) was independently developed by the receiver without any use of such confidential information; (v) becomes known to the receiver, without restriction, from a source other than the discloser, without breach of this Agreement by receiver; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, provided, however, that the receiver shall provide prompt notice thereof to enable the discloser to seek a protective order to otherwise prevent such disclosure.
Duties Regarding DUI Contacts: Participant agrees that it will charge its normal and customary fees to any clients retained through LBM’s services, and Participant will not increase its fees (directly or indirectly) for such clients due to or as a result of such services. Further, in addition to all other duties Participant owes to requestors as actual and/or potential clients, Participant agrees that it will act in a timely manner in deciding whether to accept or decline representation of each requestor and will send timely declination letters, in accordance with its ethical obligations, to those requestors it is not willing or able to represent. Participant hereby agrees and acknowledges that LBM is in no way acting as legal counsel or co-legal counsel with respect to any requestor or any of Participant’s clients.
Indemnification: Participant agrees to defend, indemnify, and hold harmless LBM and where applicable, its past and present shareholders, members, parent companies, partners, Participants, consultants, affiliates, contractors, subsidiaries, successors, predecessors, assigns, officers, directors, managers, employees, attorneys, agents, and all third parties working with LBM in connection with any of the services contemplated under this agreement, from and against any and all losses, claims, controversies, causes of action, demands, torts, damages, costs, attorney’s fees and liabilities of any kind actually or allegedly related to or arising out of:
Any breach by Participant of this Agreement, including any breach of its representations or warranties set forth herein
Any professional malpractice or other breach of duty by Participant in the course of its communications with requestors or the legal representation of its clients in any matter
Allegations of infringement or any other use by LBM of any Participant Content or any of Participant’s intellectual property;
Any increase or decrease in the number or amount of referrals, business or profits of any kind or from any source.
Limitations of Liability: LBM shall not be held liable for any special, indirect, incidental or consequential damages arising out of the services or otherwise arising out of this Agreement, regardless of whether a claim is based on contract, tort, strict liability or otherwise, or whether caused by LBM, its affiliates, agents, employees, subsidiaries, representatives, assigns or otherwise. In addition, LBM’s total liability hereunder shall not exceed the aggregate fees paid to LBM during the six (6)-month period preceding any claim. Furthermore, Participant hereby agrees and acknowledges that any liability arising out of this Agreement or the business relationship between LBM and Participant shall be limited to LBM, and Participant shall not seek to collect any amounts or damages from any party with which LBM does business. To the extent Participant breaches this Section by seeking to collect any amounts from any such third party, such third party shall be deemed to be a third party beneficiary of this Section 14 and shall be entitled to have such claim dismissed on account of Participant’s agreements set forth in this Section 14. Participant shall provide LBM timely written notice of any error, omission, or violation of any third party right by LBM of any kind, immediately upon learning of same.
Entire Agreement; Amendment This Agreement cancels and supersedes all prior written and unwritten agreements and understandings between the parties pertaining to the matters covered in this Agreement. No obligations, agreement or understanding shall be implied from any course of dealing, as all obligations, agreements and understanding with respect to the subject matter hereof are expressly set forth herein. All understandings and agreements, whether written or oral, heretofore had between the parties are merged into this Agreement, which alone fully and completely expresses the parties’ total agreement. Any amendments to this Agreement shall be effective only if reduced to writing, delivered via email to Participant and LBM at least one (1) business day before any amendments take effect and signed by LBM.
Venue and Choice of Law: This Agreement is intended to and shall be governed by the laws of the State of California (without regard to its rules regarding conflicts of laws). Exclusive venue for any applicable state or federal court, or arbitration tribunal, shall lie within Los Angeles County, California.
Arbitration: Except as provided below, any controversy or claim asserted by Participant or LBM, arising out of or relating to this Agreement, or the breach hereof, shall be resolved by binding arbitration in accordance with the rules, then obtaining, of the American Arbitration Association (Commercial Rules), and judgment upon the award rendered may be entered in any court having jurisdiction thereof. For that purpose, the parties hereto consent to the jurisdiction and venue in Los Angeles County, State of California.
Any claim arising from this Agreement or the services offered herewith shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. In the event of any arbitration or litigation arising out of or relating to this Agreement, the substantially prevailing party in such action shall be entitled to recover all costs and fees associated therewith including, without limitation, attorneys’ fees.
Assignment; Binding Agreement
LBM shall be permitted to assign this Agreement, without the consent of Participant, (i) to an affiliate, parent company or subsidiary, and (ii) in connection with a merger or sale of substantially all of LBM’s equity or assets. Upon any such assignment by LBM, all references to “Legal Brand Marketing, LLC” in this Agreement shall be deemed to be references to Legal Brand Marketing, LLC’s assignee of its rights and obligations under this Agreement, and LBM shall have no further obligations under this Agreement. Participant may not sell, transfer or otherwise assign its rights under this Agreement without the written approval of LBM (which approval may be granted or withheld in LBM’s sole discretion). This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors and assigns of the parties.
Participant shall not assign any part of this Agreement without express written consent of LBM. Participant must request, in writing, for permission to assign any part of this Agreement. LBM may or may not accept assignment and will notify Participant in writing of the same. Participant must request permission of assignment at least 60 days before the assignment is to take place. If LBM does not grant permission for assignment, absolutely no assignment of any part of this Agreement is allowed.
No Waiver The waiver of any provision or breach of this Agreement shall not be deemed a waiver of any other provision or breach of this Agreement.
Duplicate Counterparts; Acceptance of Service This Agreement may be executed in duplicate counterparts to the extent a hard copy of this Agreement is to be signed, and each such executed counterpart shall be deemed an original. Further, to the extent a hard copy of this Agreement is to be signed, as LBM has provided Participant with a copy of this Agreement, combined with the delivery of Services and acceptance of payment in full or in part by Legal Brand Marketing, LLC, will be deemed to constitute acceptance of this Agreement by both parties, whether or not this Agreement has been signed by either or both parties.
Notice All notices required or permitted under this Agreement shall be in writing and shall be deemed received when (a) delivered personally, (b) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt, or (c) sent by e-mail. Unless otherwise indicated in writing by either party to the other party, all communications shall be sent to the address set forth for each party on the signature page and/or first page hereto, or, if this Agreement is signed electronically, for LBM all electronic notices shall be sent to Braden@LegalBrandMarketing.com and Sales@LegalBrandMarketing.com.
Outsourcing. Participant hereby acknowledges that LBM may, in its sole discretion, outsource and/or subcontract certain functions in providing the services contemplated hereunder. LBM shall not be liable for any actions of any such third party.
Force Majeure: LBM shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the services contemplated hereunder.
Independent Contractors. The relationship of LBM and Participant established by the Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
Severability Clause. If any part of this Agreement is determined to be illegal and/or unenforceable, all other parts shall be given effect separately and not be affected.