These General Terms and Conditions (“General Terms”) are part of the Master Services Agreement (“MSA”) executed and entered into by and between Earth Class Mail, Inc. d/b/a LZ Virtual Mail (together with its Affiliates, “LZVM”) and Service Provider. Capitalized terms used and not defined in these General Terms shall have the meaning ascribed to them in the MSA and SOW(s) (as applicable) entered into by and between Earth Class Mail, Inc. and Service Provider (including any exhibit(s), schedules, or other attachments thereto). Each of LZVM and Service Provider may be referred to herein as a “Party” and, collectively, as the “Parties.
1. Certain Definitions.
1.1. “Action” means any claim, action, suit, inquiry, proceeding, audit or investigation by or before any government authority, or any other arbitration, mediation or similar proceeding.
1.2. “Affiliate” means any Person, domestic or foreign, including but not limited to parent and/or subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a Party.
1.3. “Agreement” shall have the meaning ascribed to such term in the MSA.
1.4. “Applicable Laws” means all applicable laws, rules, regulations, codes, orders, judgments, writs, injunctions, decrees, standards, policies, guidelines issued by federal, state or local government agencies or other government authorities.
1.5. “Business Day” or “business day” means each calendar weekday (Monday, Tuesday, Wednesday, Thursday, or Friday), except legal public holidays recognized and announced by the United States Government pursuant to 5 U.S.C. § 6103(a).
1.6. “Cause” means any of the following (a) the winding-up, closing or liquidation of Service Provider’s business or the portion thereof that provides the Services to LZVM or any third party (or intends to do any of the foregoing); (b) of the expiration or non-renewal of any of Service Provider’s Office lease(s), whether by the landlord or Service Provider; or (c) the loss by Service Provider of any other material rights to any Office property or the address associated therewith.
1.7. “Client Information” means any information or documentation that Service Provider receives or otherwise obtains from, on behalf of, concerning, or in connection with an LZVM Client, which relates to or concerns such LZVM Client, his/her account with LZVM and/or Service Provider (if and as applicable), and/or the provision or use of the Services under the Agreement, including without limitation LZVM Client’s contact information, such as name, title, address, email, IP address, telephone and fax numbers, and the like.
1.8. "Confidential Information" means any information that is not generally known to the public and that is or was used, developed, or obtained by either Party in connection with its business or the Agreement; provided, however, that “Confidential Information” shall not include information that: (a) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party in violation of the Agreement; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party and from a third party not known to be bound by confidentiality obligations to the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (c) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (d) is independently developed or acquired by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. For purposes of the Agreement, Confidential Information shall include, without limitation, the terms of the Agreement, Client Information, and all identifying or personal information that is or can be reasonably linked to an LZVM officer, director, employee, vendor or agent, or each of their respective computers or devices, including email address, mailing address, telephone number, IP address, or financial, medical, or health information.
1.9. “Force Majeure Event” means an event or occurrence that is beyond the reasonable control of a Party.
1.10. “Losses” means loss, obligation, damage, cost, lien, fine, tax, license, penalty, charge, court cost, payment, loss, liability and expense (including reasonable attorneys' fees and expenses).
1.11. “LZVM Affiliate” means each of LegalZoom.com, Inc., Legalinc Corporate Services Inc., and any other Affiliate of LZVM.
1.12. “LZVM Client” means each customer of LZVM and/or its Affiliates requesting any Services.
1.13. “LZVM Indemnified Parties” shall have the meaning ascribed to such term in Section 7.1 hereof.
1.14. "MSA Term” shall commence on the MSA Effective Date and end twelve (12) months after the expiration or termination of all SOWs entered into by the Parties.
1.15. “Office Relocation Expenses” shall have the meaning ascribed to such term in the applicable SOW.
1.16. “Person” means a natural person, corporation, partnership, limited liability company, limited liability partnership, syndicate, trust, association, organization or other entity, including any government authority, and including any successor, by merger or otherwise, of any of the foregoing.
1.17. “Record Retention Period” shall have the meaning ascribed to such term in Section 11.2.1 hereof.
1.18. “LZVM Indemnified Parties” shall have the meaning ascribed to such term in Section 7.2 hereof.
1.19. “Service Provider Records” shall have the meaning ascribed to such term in Section 11.2.1 hereof.
1.20. “Services” shall have the meaning or meanings ascribed to such term in each applicable SOW, which has not expired or been terminated, taken together.
1.21. “SOW” or “Statement of Work” shall have the meaning ascribed to such term in the MSA.
1.22. “Territory” means the state or states within the United States specified in any SOW.
1.23. “USPS” means the United States Postal Service.
2. Service Provider Business.
2.1. All questions, comments, or concerns regarding LZVM, LZVM Clients, and LZVM Affiliates received by Service Provider shall be directed to LZVM.
2.2. Service Provider shall not market, solicit, or contact LZVM Clients or otherwise use Client Information in a manner inconsistent with the purposes of the Agreement.
2.3. Service Provider will bear responsibility, risk, and liability for (a) all aspects of the conduct and operations of its business and (b) payment of all expenses related to or arising from its business activities and obligations under the Agreement.
3. Service Fee and Payment. LZVM shall pay Service Provider the monthly Service Fee set forth in the applicable SOW within sixty (60) days of receipt by LZVM of an accurate and undisputed invoice from Service Provider. Service Provider shall deliver an invoice to LZVM no later than five (5) business days following the last day of each calendar month.
4. Term and Termination.
4.1. Termination by LZVM or Service Provider for Material Breach. Either Party may terminate the Agreement, including any or all SOWs (in whole or in part), if the other Party has materially breached its obligations under the Agreement and such breach is not cured within thirty (30) days of receipt of written notice of such breach. Any material change by Service Provider to any of the Services shall constitute a material breach of the Agreement.
4.2. Termination by LZVM for Convenience. LZVM shall have the right to terminate the Agreement and/or any or all SOWs (in whole or in part) for any or no reason upon six (6) months prior written notice to Service Provider, without further obligation or liability of any kind.
4.3. Termination by LZVM for Cause. LZVM may terminate the Agreement for Cause. Notwithstanding anything to the contrary in the Agreement, Service Provider shall have the obligation to notify LZVM of the occurrence of any Cause.
4.4. Termination for Insolvency. Either Party shall have the right to terminate the Agreement, including and any and all SOWs, immediately upon written notice to the other Party in the event the other Party is adjudicated bankrupt or becomes insolvent, makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or for reorganization under Applicable Laws relating to bankruptcy or creditors’ rights or if a petition is filed against it, or if a receiver or trustee is appointed for such Party.
4.5. Additional Effect of Termination. In addition to the foregoing, upon termination of the Agreement:
4.5.1. Survival. The provisions of Section 1 (Definitions), this Section 4 (Term and Termination), Section 5 (Confidential Information), Section 7 (Indemnity), Section 8 (Service Provider Insurance), Section 9 (Limitation of Liability), Section 10 (Privacy and Security), and Section 11 (General) and any payment obligation that has accrued and is owed by one Party to another Party but has not been paid prior to the termination of the Agreement, shall survive the termination of the Agreement.
4.5.2. If the Agreement is terminated prior to the completion of a full calendar month, LZVM's obligation to pay the Service Fee shall be pro-rated according to the days of the month in which termination occurs, and Service Provider shall deliver to LZVM an invoice for such pro-rated amount.
4.5.3. On the effective date of termination of the Agreement, (a) each Party shall fully cooperate with the other Party in order to effectuate an orderly transition; and (b) each Party shall return or destroy the Confidential Information of the other Party.
5. Confidential Information.
5.1. In the course of negotiation or fulfillment of its obligations under the Agreement, each Party may have disclosed or may disclose to the other Party certain Confidential Information.
5.2. If the receiving Party becomes legally compelled by a court of competent jurisdiction, administrative agency, or by Applicable Law to disclose any of the disclosing Party’s Confidential Information, then the receiving Party shall: (a) immediately notify the disclosing Party of such demand; (b) provide reasonable cooperation to the disclosing Party in connection with any effort by the disclosing Party to seek a protective order or other appropriate remedy to prevent, restrict and/or otherwise limit the disclosure of such Confidential Information; and (c) disclose only that portion of the Confidential Information that is legally required to be disclosed (subject to any protective order and/or other appropriate restrictions) and protect the Confidential Information from further disclosure to the extent permitted by Applicable Law.
5.3. Each Party (a) shall not disclose the other Party's Confidential Information to any third party without the other Party's prior written consent; (b) shall use Confidential Information only for the limited purpose of and as necessary to carry out its obligations under the Agreement; and (c) shall disclose the other Party's Confidential Information only to those of its employees, subcontractors, agents, attorneys, and consultants who are bound by confidentiality obligations at least as restrictive as those set forth herein, and whose duties require access to the Confidential Information in order for Service Provider to perform the Services.
6. Service Provider Representations and Warranties. Service Provider represents and warrants to LZVM that as of the MSA Effective Date and for the duration of the MSA Term that: (a) it is duly organized and validly existing under the laws of the state in which it is organized and in each jurisdiction in each Territory in which it conducts business; (b) it has full corporate right, power, and authority to enter into the Agreement and to perform its obligations hereunder; (c) the Agreement represents a valid and binding obligation of Service Provider and is fully enforceable against Service Provider according to its terms; and (d) any and all activities and obligations it undertakes, and services (including the Services) it provides, under the Agreement shall be performed (i) in a manner that is consistent with industry best practice; (ii) in accordance with the terms, conditions and standards of performance set forth in the Agreement; and (iii) in compliance with all Applicable Laws.
7.1. Indemnification of LZVM. Service Provider shall indemnify, defend, and hold harmless LZVM and its Affiliates, and each of their respective officers, directors, employees and agents ("LZVM Indemnified Parties") from and against any and all Losses which may be asserted against, imposed upon, or suffered by any of the LZVM Indemnified Parties as a result of, arising out of or related to (a) breach or alleged breach of Service Provider’s representations, warranties, or obligations under the Agreement; or (b) violation of Applicable Laws by Service Provider or its agents.
7.2. Indemnification of Service Provider. LZVM shall indemnify, defend, and hold harmless Service Provider and its officers, directors, and employees (“Service Provider Indemnified Parties”) from and against any and all Losses which may be asserted against, imposed upon, or suffered by any of the Service Provider Indemnified Parties as a result of, arising out of or related to (a) breach of any of LZVM’s representations, warranties, or obligations under the Agreement; or (b) violation of Applicable Laws by LZVM or its agents.
8. Service Provider Insurance.
8.1. Service Provider shall maintain one or more insurance policies, which comply with the requirements set forth in the Agreement. All insurance policies shall contain a provision that coverage will not be materially changed, canceled, allowed to expire or failed to be renewed, and no such change, cancellation, expiration or failure shall become effective, until at least thirty (30) days after written notice of any such proposed change, cancellation or expiration has been given to, and received by, LZVM.
8.2. During the MSA Term and for a period of one (1) year thereafter, Service Provider shall maintain, at its own cost and expense the Minimum Insurance Coverage Requirements. The Minimum Insurance Coverage Requirements shall be:
Commercial General Liability
$1,000,000.00 per occurrence and in the aggregate)
Errors and Omissions and Professional Liability Insurance
$1,000,000.00 per occurrence and in the aggregate)
8.3. Additional Insureds. Upon LZVM’s written request, all policies required hereunder (except Errors and Omissions and Professional Liability Insurance) shall name “Earth Class Mail, Inc., LegalZoom.com and each of their respective affiliates” (collectively “Additional Insureds”) as additional insureds. A waiver of subrogation in favor of the Additional Insureds is required on all policies.
8.4. Certificates of Insurance. The following shall be included on Service Provider’s certificate of insurance:
“Earth Class Mail, Inc., a Delaware corporation, and LegalZoom.com, Inc., a Delaware corporation, and each of their affiliates and their respective officers, directors, agents, servants, employees, divisions, subsidiaries, shareholders, partners, and members are included as Additional Insureds. The insurance provided by the “Named Insured” is primary and non-contributory. With respect to Workers’ Compensation, a waiver of subrogation is in favor of the Certificate Holder.”
Within seven (7) calendar days of LZVM’s request, Service Provider shall deliver to LZVM certificates of insurance evidencing the requirements in this Section 11.
9. Limitation of Liability.
9.1. IN NO EVENT SHALL LZVM OR SERVICE PROVIDER, OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR RESPECTIVE CLIENTS, SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AND/OR AGENTS (“LZVM RELATED PARTIES” OR “SERVICE PROVIDER RELATED PARTIES,” AS APPLICABLE) BE LIABLE TO SERVICE PROVIDER OR LZVM, AS THE CASE MAY BE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, LOSS OF USE, LOSS OF DATA, OR FAILURE TO REALIZE SAVINGS OR BENEFITS) ARISING UNDER, RELATING TO OR IN CONNECTION WITH THE AGREEMENT OR WITH THE PROVISION OF THE SERVICES, EVEN IF SERVICE PROVIDER OR LZVM, AS THE CASE MAY BE, IS ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES.
9.2. THE TOTAL AGGREGATE LIABILITY OF LZVM RELATED PARTIES OR SERVICE PROVIDER RELATED PARTIES, AS THE CASE MAY BE, ARISING UNDER, RELATING TO OR IN CONNECTION WITH THE AGREEMENT OR THE PROVISION OF THE SERVICES SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED TWELVE (12) TIMES THE AVERAGE MONTHLY SERVICE FEE PAID DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CIRCUMSTANCES GIVING RISE TO THE CLAIM FOR DAMAGES, EXCEPT IN THE CASE OF FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
10. Privacy and Security.
10.1. Data Use and Processing Terms.
10.1.1. The Parties agree that in connection with the provision of Services to LZVM, Service Provider will at times have access to data, such as LZVM customer lists, that may be considered personal data under various privacy laws. As used in this Section 10, “Personal Data” will have the same meaning as in the applicable privacy laws. Service Provider agrees that it will only use Personal Data to provide the Services and not for any additional purposes. Service Provider will not sell, share, or otherwise provide Personal Data to any third party other than Sub-Service Providers that may assist Service Provider in providing the Services to LZVM.
10.1.2. Upon expiration or termination of the Agreement, Service Provider agrees to return or destroy all Personal Data within 30 days of the termination.
10.2. Service Provider Personnel and Sub-Service Providers
10.2.1. Service Provider will take reasonable steps to ensure the reliability and integrity of any individual who may have access to Personal Data, including conducting, to the extent permitted by, and in accordance with, all applicable laws, including but not limited to the Fair Credit Reporting Act, a background check, consisting of a criminal background check and general background investigation, for each Service Provider Agent. Service Provider will be responsible for all related costs associated therewith and shall provide LZVM with access to the background check upon LZVM’s request. Service Provider shall not permit a Service Provider Agent to perform any component of the Services until a background check is completed and the results of the background check confirm that a Service Provider Agent has not been convicted of any felonies or misdemeanors involving fraud, violence, theft, or dishonesty; provided however, that Service Provider shall make all such decisions in accordance with all applicable laws, rules, and regulations. Service Provider agrees to defend, indemnify, and hold harmless LZVM and each Indemnitee from any Losses related to Service Provider’s obligations under this Section. As used herein, “Service Provider Agent” means any of Service Provider’s employees, contractors, or agents who will perform any part of the Services or access any LZVM Confidential Information.
10.2.2. Service Provider will inform LZVM in writing if it engages any third parties to assist it with providing the Services (“Sub-Service Providers”) prior to the engagement. Service Provider will require that any Sub-Service Provider sign a contract that restricts the Sub-Service Provider’s use of Personal Data to at least the same extent as the Agreement.
10.3.1. Service Provider shall take reasonable steps to ensure that all Mail and Personal Data that it has access to is protected from being accidentally or illegally destroyed, stolen, damaged, or accessed by unauthorized individuals. These efforts will include:
10.3.1.1. Secure Facilities: Ensuring that all Mail and Personal Data are stored in a secure physical location where access is limited to only authorized individuals.
10.3.1.2. Scan and Remove Viruses: Have current antivirus software installed and running to scan for and promptly remove viruses on any computer or device used to access or store Personal Data.
10.3.1.3. Limit Failed Logins: On computers and other devices used to access or store Personal Data, limit failed login attempts to no more than six (6) successive attempts and lock the user account upon reaching that limit. Access to the user account can be reactivated subsequently through a manual process requiring verification of the user’s identity or, where such capability exists, can be automatically reactivated after at least three (3) minutes from the last failed login attempt.
10.3.1.4. Terminate Inactive Interactive Sessions: On computers and other devices used to access or store Personal Data, terminate interactive sessions, or activate a secure, locking screensaver requiring authentication, after a period of inactivity not to exceed fifteen (15) minutes.
10.3.1.5. Passwords: On computers and other devices used to access or store Personal Data, use passwords that are not the same as the UserID and that are at least eight (8) characters in length with at least three (3) of these groupings: uppercase alpha, lowercase alpha, numeric, and special characters.
If Service Provider becomes aware that any Mail or Personal Data has been accidentally or illegally destroyed, stolen, damaged, or accessed by unauthorized individuals (a “Security Breach”), the Service Provider will notify LZVM within one business day by emailing email@example.com and copying Service Provider’s LZVM’s primary business contact. If a Security Breach occurs, Service Provider will work cooperatively with LZVM to remediate the situation.
11.1. Force Majeure. In the event that either Party fails, in whole or in part, to fulfill its obligations under the Agreement, including payment of fees, as a consequence of a Force Majeure Event, the failure to perform shall not be considered a breach of the Agreement during the period of the Force Majeure Event. In the case of any Force Majeure Event, the disabled Party shall (a) promptly and in writing advise the other Party if it is unable to perform due to a Force Majeure Event, the expected duration of the inability to perform, and any developments that appear likely to affect its ability to perform any of its obligations, in whole or in part, and (b) use its best efforts to meet its obligations under the Agreement. If any Force Majeure Event continues in excess of seven (7) calendar days, the non-disabled Party may terminate the Agreement upon notice to the disabled Party.
11.2. Books and Records.
11.2.1. Service Provider shall maintain and shall require all of its agents, including any contractors or sub-contractors, that Service Provider uses or engages in connection with Service Provider’s obligations under the Agreement, to maintain, true and complete books and records and other documents in connection with Service Provider’s obligations under the Agreement, including Service Provider’s performance of the Services, and all transactions related thereto (“Service Provider Records”). In furtherance, and not in limitation, of the foregoing, all Service Provider Records shall contain sufficient information to permit LZVM to confirm (a) the accuracy of any invoices or reports delivered to LZVM, and (b) compliance with the Agreement. Service Provider shall retain all such Service Provider Records during the MSA Term and for a least seven (7) years (or such longer period of time as may be required by Applicable Law) after the end of the calendar year in which the Services are fully performed (“Record Retention Period”).
11.2.2. Service Provider shall provide LZVM (or a third-party retained by LZVM), upon reasonable request by LZVM, an opportunity to audit the Service Provider Records and procedures used to maintain the Service Provider Records at any time during the Record Retention Period. Service Provider shall fully cooperate with LZVM in connection with any such audit. In the event that any such audit shall reveal an overcharge by Service Provider to LZVM, Service Provider shall remedy such overcharge and the cause for such overcharge immediately plus interest at the maximum rate per annum allowable by Applicable Law. In the event any such audit reveals an overcharge by Service Provider to LZVM of greater than five percent (5%) during any calendar year, Service Provider shall (x) refund LZVM the full amount of any such overcharge and (y) reimburse LZVM for the costs and expenses of such audit. This Section shall survive the termination or expiration of the Agreement.
11.3. No Public Statements. Service Provider shall not make or cause to be made any statement, public announcement, public filing, claim, or representation of a business relationship between the Parties without the express prior written consent of LZVM in each instance.
11.4. Enforcement. The Parties agree that irreparable harm would occur in the event that any of the provisions of the Agreement were not performed in accordance with their specific terms or were otherwise breached, including the disclosure of Confidential Information in violation of the Agreement. Therefore, in addition to any other remedy that may be available at law and/or in equity, each of the Parties shall be entitled to seek an injunction, restraining order, or other equitable relief to enforce compliance with the provisions hereof without requirement of posting bond or other security.
11.5. Assignment. Service Provider shall not assign or transfer, in whole or in part, any of its rights or obligations under the Agreement, voluntarily or by operation of law, except with the prior written consent of LZVM, which may be granted or withheld in LZVM’s sole and absolute discretion. Any attempt to assign or transfer without the prior written consent of LZVM shall be void, and any such purported assignment or transfer shall be deemed a material breach of the Agreement. Service Provider shall, at all times, remain fully responsible and liable for the performance of Service Provider’s obligations herein, regardless if any portion or component of the Services are performed by a permitted assignee or transferee. LZVM may assign or otherwise transfer any of its rights or obligations under the Agreement without Service Provider’s consent. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and each party’s permitted successors and assigns.
11.6. Modification and Waiver. The Agreement, or any portion thereof, including the MSA, the General Terms, or any SOW, may not be modified in any manner except by a written instrument duly executed and delivered by the Parties, except as otherwise provided in the Agreement. The failure of either Party to (a) insist upon or enforce strict performance by the other Party of any provision of the Agreement or (b) exercise or partial exercise of any right or remedy under the Agreement shall not (i) be construed as a waiver or relinquishment of such Party’s right to enforce any such provision or right in any other instance or (ii) preclude either Party from exercising or pursuing any other rights or remedies available to it under law or in equity or as provided in the Agreement. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless, in either case, it is expressly stated in writing and signed by an authorized representative of the waiving party.
11.7. Relationship of the Parties. Service Provider and LZVM are independent contractors under the Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between Service Provider and LZVM. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party.
11.8. Severability. Whenever possible, each provision of the Agreement shall be interpreted in a manner as to be effective and valid under Applicable Law, but if any provision of the Agreement is held to be invalid, illegal, or unenforceable in any respect under any Applicable Law in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision or any other jurisdiction and the Parties shall reform that provision to the extent necessary to enforce it and preserve the Parties’ original intent, failing which, it shall be severed from the Agreement with the balance of the Agreement continuing in full force and effect.
11.9. Governing Law and Arbitration.
11.9.1. The Agreement and all disputes, claims, causes of action or controversies (whether in contract, tort or statute) arising out of, relating to, or that may be based upon, the Agreement, or the negotiation, execution or performance of the Agreement, shall be governed by, and construed and enforced in accordance with, the laws of the State of California (including its statutes of limitations), without giving effect to any conflict-of-laws or other rules that would result in the application of the laws of a different jurisdiction.
11.9.2. Any dispute arising out of or relating to the Agreement shall be decided by final and binding arbitration, without any rights to appellate review, before a single retired State or Federal Judge or Justice, or in instances of trademark, copyright, or patent disputes, a Federal Judge, in Los Angeles County, California. The dispute shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time arbitration is filed, unless the amount in controversy is under $500,000, in which case, JAMS Streamlined Arbitration Rules and Procedures in effect at the time arbitration is filed shall apply, both of which are incorporated herein by reference. Commencement of an arbitration under the Agreement may be accomplished by service of the required “Demand for Arbitration Before JAMS” in accordance with the notice requirements of the Agreement.
11.9.3. In reaching a decision, the arbitrator shall have no authority to change, extend, modify, or suspend any of the terms of the Agreement and shall be required to follow Applicable Law. The arbitrator shall issue a written reasoned award, which may be entered as a judgment in any court of competent jurisdiction, and the parties, and each of them, irrevocably consent to personal jurisdiction in Los Angeles, California, with respect to any disputes arising out of or related to the Agreement. The arbitrator shall have the authority to issue as part of his/her award a permanent injunction, but such authority shall not serve as a bar to any Party seeking a preliminary injunction or other form of prejudgment remedy with a court of competent jurisdiction if so allowed under Applicable Law. Under such circumstances, the applicant shall not be required to demonstrate that the “award to which the applicant may be entitled may be rendered ineffectual without provisional relief,” as otherwise required by Code. Civ. Proc. § 1281.8. This transaction involves interstate commerce, and as such, the parties agree that the Federal Arbitration Act applies. To the extent of a conflict between the Federal Arbitration Act and the California Arbitration Act, the Federal Arbitration Act controls.
11.9.4. Unless otherwise required by Applicable Law, the parties to the arbitration shall initially share equally the costs of arbitration (including arbitrator’s fees), subject to re-allocation by the arbitrator, and, provided, further, that the prevailing party in any arbitration shall be entitled to recovery of its costs (including its share of the costs of arbitration and any expert fees) and reasonable attorney’s fees.
11.9.5. The Parties, each of which represents and warrants that they have been afforded the right to consult and have consulted with an attorney of their choosing regarding the Agreement, understand that by agreeing to use arbitration, they are each giving up any right that they may have to a judge or jury trial with regard to claims arising out of or related to the Agreement.
11.10. Notice. Unless otherwise specifically stated, all notices pursuant to the Agreement shall be in writing and shall be deemed to have been duly given to the other Party (a) on the day (i) delivered by a same-day courier; or (ii) after being sent by an overnight delivery service, all fees prepaid; or (b) on the second day after being mailed by USPS certified or registered mail, postage prepaid. All notices shall be sent by one Party to the other Party at the address set forth in the MSA.
11.11. No Presumption Against Drafter. In the event of an ambiguity or a question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by each of the Parties hereto, and no presumptions or burdens of proof shall arise favoring any Party by virtue of the authorship of any of the provisions of the Agreement.
11.12. No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, nothing in the Agreement is intended to confer upon any Person other than the Parties hereto any rights or remedies, and the Parties do not intend for any third parties to be third-party beneficiaries of the Agreement.
11.13. Entire Agreement. The Agreement (a) constitutes the entire agreement between the Parties with respect to the subject matter hereof; (b) supersedes any previous oral or written arrangements or understandings, whether express or implied, relating thereto; and (c) is binding on and shall inure to the benefit of the Parties hereto and successors and assigns of Service Provider.
11.14. Headings and References. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of the Agreement as if set forth herein. The word “including” and words of similar import when used in the Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in the Agreement shall refer to the Agreement as a whole and not to any particular provision in the Agreement. The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified.
11.15. Counterparts. The Parties agree that (i) the Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures were upon the same instrument, (ii) signatures on the Agreement communicated by facsimile or other similar electronic transmission or a digital signature provided through DocuSign (or some other similar service) shall be considered an original signature, and (iii) the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity, or enforceability as a signature affixed by hand or the use of a paper-based record keeping system to the extent and as provided for in any Applicable Law including the Federal Electronic Signatures in Global and National Commerce Act, California digital signature regulations, or any other similar state laws based on the Uniform Electronic Transactions Act.
Last updated: March 3, 2023