Lawyers are ultimately responsible for ensuring their legal videos comply with their State Bar Association’s marketing and advertising guidelines.
LLG shall host and display videos on LLG’s website in the state in which that lawyer is licensed to practice law. Such videos shall remain on LLG’s website, unless lawyer directs the removal of the videos.
You affirm that you and/or lawyer owns all intellectual property rights to lawyer’s videos. Lawyer’s videos shall be and at all times remain the intellectual property of lawyer. Lawyer agrees that for the duration of these Terms of Service and until lawyer notifies LLG to remove lawyer’s videos, LLG shall be granted an irrevocable worldwide, non-exclusive, royalty free, sub-licenseable and transferable license to publicly perform, use, reproduce, distribute, prepare derivative works of, display, and perform the lawyer’s videos and non-video content, including, but not limited to name, email, address, and description in connection with the Services provided by LLG and LLG’s business, including without limitation, for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels, including third party websites and other media outlets, as LLG deems necessary for the purposes of rendering and operating the Services provided to client under this Agreement and includes permitting LLG a license to cache materials distributed or made available for distribution vie the Service, including content supplied by third parties. The rights granted are perpetual and irrevocable.
These Terms of Service may change and you agree to be bound by any such changes in LLG’s Terms of Service. LLG will attempt to notify you of changes in these Terms of Service, but you should check the Terms of Service on the LLG website from time to time. To the extent that third party permissions are needed, you affirm that such have been obtained. You shall grant LLG a limited right to use lawyer’s trademarks, if any, for the limited purpose of permitting LLG to fulfill its duties under these Terms of Service. This is not a trademark license and no other rights relating to the trademarks are granted by these Terms of Service.
You agree to notify LLG of any problems, changes, or termination of hosting services by contacting LLG at Tighe@LocalLawyerGuide.com as soon as is possible.
To the extent you are the cause of any loss, damages, or liabilities to LLG, including reasonable attorneys’ fees, you agree to reimburse, compensate and pay LLG for such losses, claims, damages, liabilities or penalties that LLG or any of LLG’s officers, directors, agents, successors or assigns may incur from your use of the Services, except to the extent that any loss, damages or liabilities are caused by LLG’s gross negligence or willful misconduct.
Professional Liability Insurance
Lawyer shall throughout the duration of this Terms of Service agreement maintain professional liability insurance. You and/or lawyer agrees to provide LLG with proof of professional liability insurance within five (5) business days of receipt of written request from LLG requesting the same.
Lawyer agrees not to include any content in their videos that are contrary or in violation of the rules of professional responsibility and ethics standards of the State Bar Association having jurisdiction over lawyer.
In the event the lawyer’s website uses LLG’s embeddable video player, you shall not modify, decompile, block any functionality, or disassemble the embed code or included text links therein provided to you in any way. The provided embed code and associated video player provided by LLG shall be branded by LLG.
These Terms of Service and video hosting services may be terminated on five (5) days notice by either you or LLG. Any terms pursuant to these Terms of Service surviving termination shall remain in full force and effect.
These Terms of Service may not be assigned by you and/or lawyer without LLG’s prior written consent. You and/or lawyer agree(s) that in the event LLG merges or is acquired by a third-party, or LLG acquires a third party in the same or similar line of business, these Terms of Service and the video hosting services shall be transferred and assigned by LLG to the merged or acquiring third-party, or to the acquired third party, as the case may be.
Limitation of Liability
LLG is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond LLG’s reasonable control.
LLG SHALL HAVE NO LIABILITY UNDER THESE TERMS OF SERVICE OR OTHERWISE TO YOU OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF ANY BREACH, MISTAKE, NEGLIGENCE, ACCIDENT, ERROR, OMISSION, INTERRUPTION OR DEFECT IN TRANSMISSION, DELAY, INCLUDING, BUT NOT LIMITED TO, ANY DELAY WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES, OR DEFAULT IN PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THOSE RELATING TO THE SERVICES, LOSS OF DATA, PROFIT, REVENUE OR BUSINESS OR THE LOSS, DAMAGE OR DESTRUCTION OF ANY PROFIT, REVENUE OR BUSINESS OR THE LOSS, DAMAGE OR DESTRUCTION OF ANY PROPERTY WHETHER YOU, YOUR ASSIGNEE OR ANY OTHER TRANSFEREE SUFFER THAT LOSS OR DAMAGE AND WHETHER OR NOT LLG IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LLG HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. LAWYER HEREBY RELEASES LLG FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED AS LIQUIDATED DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, LLG LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW, WITHOUT LIMITING THE FOREGOING.
If LLG fails to perform the video hosting services as required by these Terms of Service for any reason that constitutes a material breach or default by LLG under these Terms of Service, then you, as your sole and exclusive remedy shall have the right to terminate these Terms of Service by delivery of written notice of termination to LLG and receive as liquidated damages the sum of one hundred and 00/100 Dollars ($100.00) (the “Liquidated Damages”), in full and complete satisfaction of all damages suffered by reason of LLG’s breach or default (and you and/or lawyer hereby waives all other rights and remedies and agrees not to assert any claim or institute any action against LLG for other legal or equitable relief , including without limitation, additional damages or specific performance). You and/or lawyer’s sole remedy at law or in equity shall be such liquidated damages as provided for herein and all other damages are waived by you and/or lawyer.
LLG may perform maintenance to its website and servers from time to time that may affect the availability or functionality of all or part of the Services at any time. Any impact on the Services as a result of maintenance will not be deemed LLG’s breach of these Terms of Service.
LLG shall not be in violation of these Terms of Service or otherwise delay, failure to perform or damage, loss, destruction or malfunction or any consequences thereof, caused in whole or in part by anything beyond LLG’s reasonable control in the course of providing you and/or lawyer with the Services and performance of these Terms of Service, including, without limitation, fire, earthquake, flood, weather, acts of God, public health emergency or pandemic, labor disputes, utility curtailments, power failures, cable cuts, failure caused by telecommunications or other internet provider(s), mobile devices or other Services related products, worms, Trojan horses, viruses or other destructive code or software, explosions, civil disturbances, terrorism, vandalism, governmental actions or shortages of equipment or supplies.
Failure by a Party to insist upon strict performance of any of the provisions of these Terms of Service by any other Party, or the failure by a Party to exercise its rights upon default of any other Party, shall not constitute a waiver of such Party’s rights to insist and demand strict compliance by any other Party with the terms of these Terms of Service thereafter.
These Terms of Service shall not be altered, modified or amended, except by written agreement signed by all the Parties, including, and not limited to, by the Party against whom such modification or amendment is asserted.
If, after the date of these Terms of Service, any provision hereof is held to be illegal, invalid, or unenforceable under applicable laws effective during the term of these Terms of Service, such provision will be fully severable and the remainder of these Terms of Service will remain enforceable and not affected thereby.
Nothing contained in these Terms of Service constitutes or shall be construed to constitute the formation of a partnership, joint venture, association or any other form of co-ownership or common undertaking between or among the Parties.
These Terms of Service will be governed by the laws of the State of Arizona. The Parties agree that in the event any action is commenced in connection with these Terms of Service, venue for such action or proceeding shall be proper only in a court of competent jurisdiction located in Maricopa County, Arizona, and hereby agree to submit to the jurisdiction of such court.
These Terms of Service represents the entire agreement between everyone and any and all prior agreements, understandings and obligations that exist or may exist between the Parties.
You hereby acknowledge and guarantee that lawyer is in good standing with their governing State Bar Association and is licensed by the governing authority to practice law in the territory in which the lawyer is listed. You and/or lawyer agree(s) to immediately notify LLG if there is any material change to lawyer’s authority to practice law. Failure of lawyer to be licensed to practice law shall constitute a basis for LLG to terminate services to you and/or lawyer, pursuant to §7.2.
Whereas, LLG is in the business of advertising various forms of content through placements on Internet websites/applications and monitoring the performance metrics of such content; and
Whereas, Client desires to pay LLG to advertise for Client on various Internet websites/applications on behalf of Client.
In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
LLG shall provide the following services (“Advertising Services”) to Client in connection with this Agreement.
(b) LLG shall place and run Client’s Creatives (“Placements”) among internet websites/applications as selected by LLG in its sole discretion (“Inventory”), and monitor the performance of the Placements on the Inventory, including, without limitation, by tracking the Creative’s “Impressions”, as defined in the Interactive Audience Measurement and Advertising Campaign Reporting and Audit Guidelines (United States Version) promulgated by the Interactive Advertising Bureau (IAB) (“Performance Tracking”).
1.2 Monthly Reporting
During the Term, LLG agrees to provide Client with a monthly report no later than the fifth (5) day of each month of the results of LLG’s Performance Tracking of the Creatives, and LLG and Client will meet on a monthly basis on a date mutually agreed upon by both Parties to review such monthly report and discuss possible modifications to the advertising campaign based on patterns and trends identified by the Parties in the monthly report.
In the event Client becomes aware of any technical or similar issue (e.g., technical glitch) relating to the Creatives on any of the Inventory, Client is prohibited from directly contacting any such Inventory. Instead, Client must direct all communication in this regard to LLG, who will then use reasonable efforts to address the issue. Client further acknowledges that LLG utilizes third party Inventory in the provision of the Advertising Services and agrees that in the event any third party Inventory used by LLG crashes, goes offline, terminates, ceases making its Advertising Services available to LLG for any reason or otherwise becomes unavailable for Placements, LLG will use commercially reasonable efforts to mitigate such interruptions or disruptions, including by attempting to find a replacement third party Inventory, but shall have no liability if it is unsuccessful in mitigating the loss of the use of such third party Inventory.
1.4 Phone Support
LLG shall provide telephone support to Client in connection with the Advertising Services during the hours of 9:00 a.m. to 5:00 p.m. local Arizona time, Monday through Thursday, excluding federal or Arizona state holidays.
2.1 Monthly Fees
(a) During the Term, (X) per month (“Monthly Fee”), where (X) is the amount agreed upon in the short form agreement.
(b) Thereafter, either (i) the Monthly Fee, or (ii) such greater amount as proposed by Client (for the purpose of purchasing additional advertising placements of the Creatives) in a written notice provided to LLG within five (5) days prior to the due date of the next Monthly Fee, plus any and all sales and other taxes on the Monthly Fee; provided, however, that in no event shall the Monthly Fee be less than two-thousand ($2,500) dollars.
Client authorizes LLG to charge Client’s credit card on file when the Advertising Services commence and every thirty (30) days thereafter, unless Agreement is terminated early.
Client acknowledges that the Cost Per Mille (“CPM”) disclosed by LLG to Client includes technology fees, payment for third party data segments, and LLG’s fees. LLG may charge interest and service charges on all Monthly Fee amounts that are delinquent at the maximum rate allowable by law. Client shall be responsible for all collection costs and attorneys’ fees if it is necessary for LLG to pursue such collection efforts to collect on an amount due. LLG reserves the right to suspend the Advertising Services until the Client’s account is brought current. LLG has the right to immediately terminate this Agreement after Client receives written notice from LLG that any fees owed under this Agreement are delinquent and the Client fails to cure such delinquency within (5) days (“Payment Failure”).
LLG agrees to keep accurate books of account covering all financial transactions relating to the fees (“Audit Records”) for a period of one year. Client is bound by a duty of confidentiality, shall have the right to examine the LLG’s Audit Records no more than once per year upon no less than 10 business days’ notice; provided, however, any such audit shall (a) cover a period of no less than six months, and (b) be conducted during regular business hours in such a manner as not to interfere with normal business activities. Client will bear its own costs and expenses for any audit, unless any audit reveals an overpayment of greater than 10% and $8,000 dollars of amount owed during the period audited, in which case LLG shall pay Client’s reasonable costs and expenses for such audit.
This Agreement may be terminated prior to expiration of the Term as follows:
3.1 Mutual Right to Terminate
Either Party may terminate this Agreement upon written notice to the other Party:
(a) If the other Party materially breaches any material provision of this Agreement (other than a Payment Failure) and is not cured by the other Party within twenty (20) days after its receipt of written notice of such breach;
(b) If the other Party (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against 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, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) 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; or
(c) In the event of a Force Majeure Event (as defined below) affecting the other Party’s performance of this Agreement for more than thirty (30) consecutive days.
3.2 LLG’s Right to Terminate
LLG may immediately terminate this Agreement upon a Payment Failure.
4. Effect of Termination
4.1 Expiration or termination of this Agreement will not affect any rights or obligations that:
(a) Are to survive the expiration or early termination of this Agreement; and
(b) Were incurred by the Parties prior to such expiration or early termination.
4.2 Notice of Termination
Notice of Termination under this Agreement shall operate as an automatic cancellation of any Creatives that is scheduled to be published subsequent to the date of the termination notice, subject to any unavoidable restrictions imposed by an Inventory’s production schedule. If an Inventory’s production schedule prevents automatic cancellation of the Creatives, the effective date of termination of this Agreement (“Termination Effective Date”) shall be the date immediately following publication of the final Creatives unable to be automatically cancelled.
4.3 Subject to Section 8 and Section 10
The Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall 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 early termination of this Agreement. Termination of this Agreement will not constitute a waiver of either Party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise.
The Client hereby grants to LLG, a limited, revocable, sub-licensable (as noted below), royalty-free and non-exclusive license to use Client’s Intellectual Property (as defined below) in and in connection with the reproduction, distribution, publication, and/or performance of the Creative. “Intellectual Property” is hereby defined as name and likeness, 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, together 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. LLG may sublicense any and all of Client’s Intellectual Property contained in the Creatives to Inventory solely as necessary to permit the Inventory to publish, distribute, and/or display the Creatives for the benefit of Client.
6. Representations and Warranties
6.1 Mutual Representations and Warranties
Each Party represents and warrants 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 purposes of this Agreement;
(c) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(d) The execution of this Agreement by its representative whose signature is set forth at the end hereof and the delivery of this Agreement by the Party has been duly authorized by all necessary corporate action of the Party;
(e) This Agreement has been executed and delivered by the Party and (assuming due authorization, execution and delivery by the other Party) constitutes the legal, valid and binding obligation of the Party, enforceable against the Party in accordance with its terms; and
(f) It is now and through the Term shall remain in compliance with all laws applicable to the performance of its obligations under this Agreement.
6.2 Client Representations and Warranties
Client represents and warrants that:
(a) None of the content in the Creatives will (i) violate any criminal law, (ii) advocate any illegal activity or (iii) be defamatory, libelous, slanderous or otherwise unlawful; and
(b) Client has and will retain all rights, licenses and clearances necessary to lawfully use, and authorize LLG to use, the contents and subject matter contained in the Creatives including: (i) any Intellectual Property; (ii) any testimonials or endorsements contained in the Video Creative; (iii) any name, photograph, likeness or identity of individuals, either living or dead, famous or not famous; and (iv) any other rights, licenses, permissions clearance or approvals which may be necessary.
7.1 Client Indemnification Obligations
Client shall defend, indemnify and hold harmless LLG, and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “LLG Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by LLG Indemnified Party, arising out or resulting from any third party claim alleging:
(a) That Client breached any representation, warranty, covenant or other obligations set forth in this Agreement;
(b) That the content of the Creatives infringes any Intellectual Property right of a third party;
(c) That Client was grossly negligent or more culpable in its acts or omissions (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or
(d) That such third party relied upon to its detriment or otherwise suffered losses or damages arising out of or based upon the content of the Creatives.
7.2 LLG Indemnification Obligations
LLG shall defend, indemnify and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Client Indemnified Party”), against any and all Losses, arising out of or resulting from any third-party claim alleging:
(a) Material breach by LLG of any material obligations set forth in this Agreement; or
(b) Gross negligence or more culpable act or omission of LLG (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
7.3 Exceptions and Limitations on Indemnification
Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party against any Losses arising out of or resulting, in whole or in part, from the other Party’s:
(a) Willful or reckless acts or omissions; or
(b) Bad faith failure to comply with any of its material obligations set forth in this Agreement.
7.4 Indemnification Procedures
A Party seeking indemnification under this Section 8 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of 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 shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall 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 shall have the right to participate in the defense at its own expense.
7.5 Exclusive Remedy
This Section 8 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 8.
8. Limitation of Liability; Disclaimer of Warranties
8.1 Limitation of Liabilities
(a) 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 the 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.
(b) 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 breach of contract, tort (including negligence) or otherwise, shall not exceed the total of the amounts paid to LLG pursuant to this agreement within the three (3) months preceding the event giving rise to the claim or one-hundred thousand dollars ($100,000), whichever is less.
8.2 No other representations or warranties; non-reliance
Except for the express representations and warranties contained in Section 7, (A) neither Party to this agreement, nor any other person on such Party’s behalf, has made or makes any express or 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 7 of this agreement. Furthermore, LLG expressly disclaims all warranties and/or guarantees, express or implied, including, but not limited to, warranties for accuracy, merchantability and/or fitness for any particular purpose in connection with the display, performance and transmission of the video creative. Without limiting the generality of the foregoing, LLG disclaims all warranties and/or guarantees with respect to its Advertising Services, including without limitation, warranties and/or guarantees relating to: (i) the positioning or placement of the Creatives on Inventory, (ii) the selection of Inventory for placement of the Creatives, (iii) minimum number of views of the Creatives in any month, and (iv) advertising results and efficacy of the Advertising Services.
9. Confidentiality & Non-Compete
From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and Advertising Services, confidential information and materials comprising or relating to the list of Inventory, Intellectual Property, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement (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 as a result of, directly or indirectly, any breach of this Section 10 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) is required to be disclosed pursuant to applicable law. The Receiving Party shall: (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 shall be responsible for any breach of this Section 10 caused by any of its representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its representatives shall promptly return all Confidential Information and copies thereof that it has received under this Agreement.
LLG provides video production, video marketing, and advertising services. Affiliate shall not compete with LLG’s video advertising across the United States of America for a period of two (2) years from the termination of this Agreement by either LLG or Affiliate; except that the parties agree the term of this non-compete shall be less than two years should a court fail to enforce a two (2) year time period.
10.1 Further Assurances
Upon a Party’s reasonable request, the other Party shall, 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.
10.2 Entire Agreement
This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Subject to the limitations and other provisions of this Agreement, (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement for a period of 24 months after such expiration or termination; and (b) Section 8, Section 9, Section 10 and Section 11 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period of 36 months after such expiration or termination. No action based upon or arising in any way out of this Agreement may be brought by either Party after the expiration of the applicable survival period; provided, however, that any claims asserted in good faith by sending a demand for mediation to the other Party in accordance with Section 11.15 prior to the expiration of the applicable survival period are not thereafter barred by the expiration of the relevant period, and such claims survive until finally resolved.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the Parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section 11.4). All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (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.
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 headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.8 Amendment and Modification
No amendment to or modification of or rescission, termination or discharge of, this Agreement is effective unless it is in writing and signed by each Party.
(a) No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right.
(b) Any waiver authorized on one occasion 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.
10.10 Cumulative Remedies
Except as set forth in Section 7 and Section 8, 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.
10.11 Equitable Remedies
Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 10 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of 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, without any requirement to post a bond or other security, and without any 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 the terms of this Section 11.11.
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 shall not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement to 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 shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment; transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
10.13 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 whatsoever under or by reason of this Agreement.
(b) The Parties hereby designate the LLG Indemnified Parties and Client Indemnified Parties as third-party beneficiaries of Section 8 of this Agreement having the right to enforce Section 8.
10.14 Choice of Law
This Agreement and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with, the laws of the State of Arizona, United States of America, without regard to the conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona.
10.15 Mediation and Arbitration
(a) Prior to commencement of any arbitration or litigation, any controversy or claim arising out of or relating to this Agreement shall be resolved by the Parties first attempting to mediate their dispute using a professional mediator from AAA, the CPR Institute for Dispute Resolution, or like organization selected by agreement, or, absent agreement, through selection procedures administered by the AAA. Within a period of twenty (20) calendar days after the request for mediation, the Parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than forty-five (45) days absent agreement of the Parties or interfere with the availability of equitable remedies pursuant to Section 11.11.
(b) In the event the mediation process does not result in resolution, then any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then pertaining (available at www.adr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be selected within twenty (20) business days from commencement of the arbitration from the AAA’s National Roster of Arbitrators pursuant to agreement or through selection procedures administered by the AAA. Within forty-five (45) calendar days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than six months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the AAA and adhered to by the Parties. The arbitration shall be held in Phoenix, Arizona and the arbitrator shall apply the substantive law of the State of Arizona, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act.
10.16 Force Majeure
(a) No Party shall 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: acts of God; flood, fire or explosion; Internet outages; war, invasion, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; or any other event which is beyond the reasonable control of such party (each of the foregoing, a “Force Majeure Event”).
(b) During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance.
(c) The non-affected Party may terminate this Agreement if such failure or delay continues for a period of 30 days or more. Unless this Agreement is terminated in accordance with this Section 10.16(c), the Term of this Agreement shall be automatically extended by a period equal to the period of suspension.
10.17 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. LLG is an independent contractor pursuant to 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.