This J13 Consulting LLC Master Services Agreement (“MSA”), along with the proposal for services (hereinafter referred to as the “Agreement”) reflects the terms and conditions agreed upon between “Client” (sometimes referred to as “Client”, “you” or “your”) and J13 Consulting LLC d/b/a Agency 310, (sometimes referred to as “A310”, “we,” “us,” or “our”) regarding the services identified in the proposal.
1. DESCRIPTION OF SERVICES. Beginning on the Effective Date (as defined below), A310 will provide the services (the “Services”) as detailed in the Agreement.
2. TERM. This Agreement will become effective, without further notice of acceptance, upon countersignature by us (“Effective Date”). The Agreement will continue for 12 months from the Effective Date (the “Initial Term”) and may be terminated 1) upon 60 days’ prior written notice to the other party thereafter or 2) for the additional reasons set forth in Section 10 of this agreement. For avoidance of doubt, execution by Client of the Agreement (which incorporates all terms of the MSA, the proposal for services and detailed breakdown of the Services) is acknowledgment that Client has received, read and understands the terms and conditions of the Agreement and agrees to be bound by such terms.
3. SERVICES. During the Initial Term, Client agrees to pay the net monthly charges for all subscriptions listed above. Following the Initial Term, subscriptions will automatically continue and be billed at then-current list prices (subject to future price adjustments), until terminated in accordance with this Agreement.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 3 percent per year, or the maximum percentage allowed under applicable California laws, whichever is less.
Client shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if Client fails to pay for the Services when due, Provider has the option to treat such failure to pay as a material breach of this Contract and may cancel this Contract and/or seek legal remedies.
Payments are due on the Effective Date and on the same date of each succeeding month. ACH (Automated Clearing House) is the preferred method for payment and will be considered the agreed upon method for payment unless another method is specifically requested by Client. Acceptable payment methods include American Express, Visa, Mastercard, which are subject to a 2 percent processing fee per transaction, and business checks, which are subject to a $15 processing fee. Checks should be made payable to A310 and must be received by payment due date. Any payment that is returned due to non-sufficient funds is further subject to an additional $50 fee.
4. WORK PRODUCT OWNERSHIP. Subject to your fulfillment of all payment obligations under this Agreement, we assign you all right, title, and interest we have in any work specifically created for you under the Agreement (the “Work”), except that: (a) any third-party data or intellectual property used to create the Work is specifically excluded, e.g. stock imagery, call tracking telephone numbers, online chat functionality, etc.; (b) we may use and distribute the Work as part of our portfolio and for promotional purposes in perpetuity; (c) we will own all rights to concepts, ideas, designs, and other materials which have been presented to you but are not included in the Work; (d) we will own and retain all rights, including our intellectual property rights, to any technology, inventions, algorithms, processes, data, software, architecture, source files, source code, and other underlying elements used in the creation or hosting of any Work or Services (collectively, the “Underlying Technology”). We grant you a non-exclusive, royalty-free, worldwide, perpetual license to use our Underlying Technology to the extent it is incorporated into the Work or Services.
5. DISCLAIMERS.
1) Disclaimer of Warranty. We make no guarantees, representations, or warranties to you regarding the results or performance of the Services, including the quality or volume of online traffic or business the Services will generate. Certain technologies employed by web browsers or other software may not support features or functionalities included in the Services. We will have no liability for claims related to users’ inability to access the Services. The Services are provided “as is” without warranty of any kind, express or implied, including warranties of performance, merchantability, fitness for a particular purpose, accuracy, and completeness. We do not warrant that the Services will be delivered free of any interruptions, delays, omissions, or errors (“Faults”), or that we will be able to correct all Faults.
2) Third-Party Sites. As part of the Services, we may submit your business profile and certain Work(s) for publication on third-party sites, such as directories or social media pages. Those sites may allow others to comment positively or negatively about your business or its principals and employees or repost and share your information or Work. You consent to such submissions and publication, understanding that we do not control those sites and will not be responsible for removing or editing the Work or any comments after publication.
6. NO LEGAL ADVICE. No statement, written or oral, by us, our employees, representatives, or contractors, is to be construed as legal advice. You are solely responsible for complying with laws and regulations applicable to lawyer advertising and your use of the Services.
7. LIMITATION OF LIABILITY. Our entire liability (and the liability of our vendors, licensors, agents, or affiliates) for all claims arising out of or in connection with the Agreement will not exceed the amount of your actual direct damages up to the amounts you paid during the prior 12 months for the Service that is the subject of the claim. We are not liable for special, incidental, exemplary, indirect or economic consequential damages, anticipated savings, lost profits, lost business, lost revenue, or lost goodwill.
8. LIMITATION OF CLAIMS. No claim arising out of or related to any Service may be brought by either party more than 12 months after the Service ends, except that we may bring an action to collect unpaid Charges at any time prior to the expiration of the applicable statute of limitations.
9. INDEMNIFICATION.
1) Your Indemnification Obligations. You agree to indemnify and hold us harmless from and against any third-party actions, causes of action, liability, damages, costs, and expenses, including attorneys’ fees (collectively, “Losses”), arising out of a claim(s) that: (a) content or materials you provided to us for use in the creation or publication of a Work, or the delivery of the Services, infringes on a third party’s intellectual property rights; (b) the Work or Services you approved includes content that is false, offensive, deceptive, or defamatory, or may otherwise cause harm to us or a third party; (c) content or materials you provided to us contained bugs, viruses, or malicious code; (d) your use of the Services failed to comply with applicable laws, rules, or regulations regarding attorney conduct, advertising or data privacy; or (e) you failed to comply with applicable third-party terms of service made known to you by us
2) Our Indemnification Obligations. We agree to indemnify and hold you harmless from and against any Losses arising out of a claim(s) that: (a) content or materials we used in the creation or publication of a Work, or the delivery of the Services, infringes on a third party’s intellectual property rights; (b) the Work or Services, exclusive of content and materials you provided, contained bugs, viruses, or malicious code; or (c) your use of the Services violated the terms of use of one of our vendors or licensors whose terms were not made available to you by identification of the vendor or reference to the third party’s terms of use in an order form.
10. TERMINATION. Per Section 2 above, either party may terminate the Agreement by giving the other party written notice of its intent to do so, and such termination will become effective 60 days after the notice is given or upon expiration of the current Agreement term, whichever occurs later.
1) Other Events of Termination. The Agreement may also be terminated immediately under the following circumstances: (a) You formally dissolve your business and provide us with evidence of the dissolution; (b) You or your authorized representative notify us that you have become unable to do business due to death, disability, or professional discipline; (c) You are a solo attorney and are elected or appointed to judicial office; (d) Either party notifies the other of a material breach of the Agreement, or another agreement between the parties, and the material breach exists and remains uncured for 30 days following notice;
2) Immediate Termination. We may suspend or terminate the Agreement immediately, at our sole discretion and without further notice, if you fail to pay Charges when due.
11. DEFAULT. A material default of the agreement includes but is not limited to the occurrence of any of the following:
1) The failure to make a required payment when due.
2) The insolvency or bankruptcy of either party.
3) The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
4) The failure to make available or deliver the Services in the time and manner provided for in this Contract.
12. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party pursuant to Section 10. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived in writing by the party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.
13. CONFIDENTIAL INFORMATION. Confidential information received by and sent to the other party to this Agreement will not be disclosed to any third party, unless required by law or as deemed necessary to perform the Agreement. The receiving party agrees that during the term of the Agreement and indefinitely thereafter, it will continue to protect the confidential information. If a court or government agency orders either of us to disclose the other party’s confidential information the other party will be promptly notified so that an appropriate protective order or other remedy can be obtained, unless the court or government agency prohibits prior notification.
14. USE OF DATA. We collect data from you and from users of the Services, directly and by using various technologies, such as cookies, pixels, and remarketing tags embedded into the Services. You agree that we may use third parties to assist in this data collection. We use the data to help us better understand the Services’ performance, the audience reached by the Services, and how we may better reach audiences in the future. We will share data as necessary to effectively provide the Services, comply with the law, and to protect our rights. We own data that we collect from the Services, and we will store the data in accordance with our retention policies, which are subject to change from time to time.
15. CONSENT TO CONTACT AND CALL RECORDING. You expressly consent that we, and our agents (including collection agents and law firms) may contact and send messages to you, or anyone affiliated with you, regarding your account. You also expressly consent to our recording of communications with you for quality assurance, training, archival, or other purposes without further notice. Any calls recorded between A310 and Client will be protected by the CONFIDENTIAL INFORMATION clause detailed in Section 13 of this agreement.
16. FORCE MAJEURE. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
17. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
18. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
19. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
20. AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
21. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of California.
22. NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
23. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
24. ATTORNEY’S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, both in the trial court and on appeal.
25. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
26. SUBCONTRACTORS. Provider may retain such Subcontractors as in Provider’s reasonable judgment may be necessary to complete Provider’s duties and obligations under this Agreement. Provider shall be solely responsible to pay its Subcontractors and the use of any Subcontractor shall not limit Provider’s obligations hereunder.
27. ASSIGNMENT. A310 assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
28. CUMULATIVE RIGHTS. Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
