Terms and Conditions - Advantage Referral Agreement
Section 1. Definitions
1.1 “Ad Content” will mean Articles, graphic images, text, banners, buttons, description of Advantage Products or Document Products, and any other content, language, or images, provided by LegalZoom to Partner, for purposes of performing or fulfilling the terms of this Agreement including, but not limited to, the LZ Marks and LZ Links.
1.2 “Advantage Products” will mean the subscription based LegalZoom products set forth in Schedule B.
1.3 “Advantage Program” will mean the arrangement whereby Partner provides means through which certain Partner Customers may have access to the Advantage Products or Document Products.
1.4 “Affiliate” will mean any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly controls, is controlled by, or is under common control with a Party.
1.5 “Article” will mean any written article submitted by LegalZoom to and approved by Partner intended for publication in Partner Marketing Materials or in any other approved marketing asset associated with the Advantage Program.
1.6 “Claim” will have the meaning ascribed to such term in Section 8.2.
1.7 “Commission Rate” will have the meaning set forth in Part A above.
1.8 “Confidential Information” will have the meaning ascribed to such term in Section 7.1.
1.9 “Customer Data” will have the meaning ascribed to such term in Section 2.5.
1.10 “Customer Data Lead” will have the meaning ascribed to such term in Section 2.5.
1.11 “Deductions” will mean the amount of expenses associated with a Referred Customer incurred by LegalZoom as a result of: (a) charge backs, (b) refunds to the customer during the reported month, (c) fraudulent payments, (d) sales taxes, (e) government filing fees, (f) shipping, (g) payments made to third party service providers, including without limitation, law firms and attorneys, necessary for the provision and fulfillment of the Advantage Products or Document Products to the Referred Customer. For the sake of clarification, Deductions will not include overhead, administrative, or other expenses incurred by LegalZoom in its ordinary course of business.
1.12 “Document Products” will mean all products and services available for purchase through the LegalZoom Website other than subscription plans (i.e., blank legal forms, Advantage Products, continuing coverage programs, etc.), third-party services and offers, or attorney assisted products.
1.13 “Effective Date” will have the meaning set forth in Part A above.
1.14 “Gross Receipts” will mean all receipts received by LegalZoom from Referred Customers for the purchase of an Advantage Product or Document Product.
1.15 “Indemnified Party” will have the meaning ascribed to such term in Section 8.2.
1.16 “Indemnifying Party” will have the meaning ascribed to such term in Section 8.2.
1.17 “Landing Page” will mean a unique landing page that prominently displays at least one Partner Mark and at least one LZ Mark on the LegalZoom Website that is the immediate destination of the LZ Link and is also, primarily, a specific offer of Advantage Products and/or Document Products to Partner Customers.
1.18 “LegalZoom Website” will mean, collectively: (a) the Website that is currently accessible primarily through its home page located at www.legalzoom.com and (b) other Websites owned and/or operated by LegalZoom.
1.19 “LZ Link” will mean any link that takes the Internet user from the Partner Website or Partner Marketing Materials to the Landing Page, whether it is in the form of text, banner, button or otherwise.
1.20 “LZ Marks” will mean LegalZoom’s trade names, trademarks, service marks, trade names, logos, other branding elements and other intellectual property used by LegalZoom in identifying its business.
1.21 “Keyword Buy” will have the meaning ascribed to such term in Schedule A (Marketing Guidelines).
1.22 “Monthly Report” will have the meaning ascribed to such term in Section 4.2.
1.23 “Net Receipts” will have the meaning ascribed to such term in Section 4.1.
1.24 “Partner Customer” will mean any visitor or user of the Partner Website.
1.25 “Partner Marketing Materials” will have the meaning ascribed to such term in Section 2.1.
1.26 “Partner Marks” will mean the Partner’s names, trademarks, service marks, trade names, logos, other branding elements and other intellectual property used by Partner in identifying its business.
1.27 “Partner Website” will mean the Website that is operated by Partner and currently accessible primarily through its homepage located at the URL specified in Part A.
1.28 “Qualifying Event” will have the meaning set forth in Part A.
1.29 “Referral Fee” will have the meaning ascribed to such term in Section 4.1.
1.30 “Referred Customer” will mean (a) any Partner Customer who, during the Term, through the use of the LZ Link or Partner Marketing Materials, visits the LegalZoom Website and achieves a Qualifying Event or (b) any Customer Data Lead who achieves a Qualifying Event. For the purposes of clarification, a Partner Customer shall be considered a “Referred Customer” and continue to be considered a “Referred Customer” if (a) the Customer has purchased a LegalZoom product that is not an Advantage Product or Document Product but, through the Advantage Program orders an Advantage Product or Document Product or (b) has never transacted with LegalZoom in the past. A Partner Customer shall not be considered a “Referred Customer if (w) the customer already has or subsequently enrolls into a subscription for an Advantage Product with terms that, in LegalZoom’s reasonable discretion, are equal to or more beneficial than the subscription purchased (x) at the time of the referral from Partner, the customer is a subscriber to an Advantage Product, (y) if the customer used to be a subscriber to an Advantage Product but subsequently cancelled his/her subscription, or (z) the Partner Customer does not remit actual payment to LegalZoom due to (i) charge backs, (ii) refunds to the customer during the reported month, (iii) fraudulent payments, (iv) declined credit card payments.
1.31 “Search Engine” will have the meaning ascribed to such term in Schedule A (Marketing Guidelines).
1.32 “Term” will have the meaning ascribed to such term in the Section 9.1.
1.33 “Website” will mean any point of presence maintained on the Internet or on any other public data network. With respect to any Website maintained on the World Wide Web, such Website includes all HTML pages (or similar unit of information presented in any relevant data protocol) that either (a) are identified by the same second-level domain or by the same equivalent level identifier in any relevant address scheme, or (b) contain branding, graphics, navigation or other characteristics such that a user reasonably would conclude that the pages are part of an integrated information or service offering.
Section 2. Advantage Program
2.1. Ad Content. Partner shall market, advertise, and promote the Advantage Program to the Partner Customers by directing Partner Customers to the Landing Page via the LZ Link or, (ii) collecting contact information from Partner Customers who express a desire to be contacted by LegalZoom to learn more about the Advantage Products, in each case in accordance with the obligations and restrictions set forth in Schedule A (Marketing Guidelines). Partner shall have the right to include Ad Content provided by LegalZoom on (a) the Partner Website and (b) if the Parties mutually agree in writing (including email), other marketing materials related to the Advantage Program (“Partner Marketing Materials”), in each case, for the benefit of the Advantage Program. The Parties will work together to develop the manner in which the Ad Content is presented on the Partner Website, Landing Page and the Partner Marketing Materials according to the terms herein. Partner shall have the right to publish, display, or reproduce any Article in any electronic newsletter, newsletter archive, on the Partner Website, or any other marketing asset associated with Partner, in each instance with LegalZoom’s prior written approval.
2.2. Landing Page.
2.2.1. LegalZoom shall provide Partner a LZ Link that immediately directs a user to the Landing Page. As between LegalZoom and Partner, LegalZoom shall have the sole right and responsibility of creating and maintaining the Landing Page on the LegalZoom Website. The Landing Page shall have the ability to track all traffic, orders and sales of Advantage Products and Document Products from the Landing Page for a period of thirty (30) days from the date a Partner Customer visits the Landing Page and receives a tracking cookie.
2.2.2. Prior to public distribution or display, the Landing Page shall be approved in writing by each Party with Partner’s review and approval limited to the compliance of the Partner Marks to Partner marketing standards. Partner hereby grants LegalZoom a limited, non-exclusive, worldwide, non-transferable, non-sublicensable, revocable license to display the Partner Marks on the Landing Page provided that Partner has provided its written approval of the Landing Page.
2.3. LegalZoom’s Business. LegalZoom may add, delete, or modify the Advantage Products or Document Products and their prices, at any time, in its sole and absolute discretion; provided that, if any such modifications affect Ad Content in a manner that will cause Partner to breach its representations and warranties herein, LegalZoom will use commercially reasonable efforts to provide Partner with revised and correct Ad Content.
2.4 No Exclusivity. Partner and LegalZoom expressly agree that neither any provision of this Agreement nor any amendment of this Agreement shall prohibit or otherwise restrict LegalZoom from entering into any discussions, negotiations or agreements pursuant to which LegalZoom recommends, refers, endorses, sponsors, promotes, advertises or otherwise engages with business with any other entity including, but not limited to, entities that offer the same products or services offered by Partner. Both Partner and LegalZoom understand and agree that LegalZoom shall, in no way, be limited or restricted from entering into similar agreements with direct competitors of Partner prior to, during or after the term of this Agreement. LegalZoom does not commit to provide, guarantee or make representation regarding the minimum Referral Fees for any month.
2.5 Customer Data Leads. As the Parties agree in writing, Partner will create, design, host, and promote advertisements promoting the Advantage Products in a manner that offers Partner Customers the opportunity to submit their contact information and other information (“Customer Data”) for the purpose of being contacted by LegalZoom. Any such advertisements that include LZ Marks will be approved in writing by LegalZoom prior to publication. Partner will send to LegalZoom the Customer Data for any such interested Partner Customer at which point such Partner Customer shall become a “Customer Data Lead.” Partner will not be required to provide LegalZoom a minimum number of Customer Data Leads. LegalZoom will use the Customer Data for the sole purpose of offering the Advantage Products to the Partner Customer until such time as the Partner Customer achieves a Qualifying Event and is deemed a Referred Customer and LegalZoom will treat such Referred Customer like other similarly situated customers.
Section 3. Intellectual Property
3.1. LegalZoom hereby grants Partner a limited non-exclusive, worldwide royalty-free license to use, reproduce, reformat, publicly display, publicly perform and distribute LZ Links and the Ad Content on the Partner Website and, if the Parties mutually agree in writing (including email), Partner Marketing Materials. At any time, LegalZoom may submit written requests to modify or exclude Ad Content from the Partner Website or Partner Marketing Materials. Partner will make commercially reasonable efforts to accommodate such requests as soon as practicable but, in any event, shall accommodate such requests no later than fourteen (14) days after receipt. LegalZoom will provide Partner with the appropriate Ad Content in a format and manner reasonably acceptable to both Parties. LegalZoom represents and warrants that throughout the Term (i) it shall have all necessary rights, licenses, permits and clearances to use the Ad Content, (ii) the Ad Content does not violate or infringe any right of privacy, personality or publicity, trade secrets, patents, copyrights or trademarks under the laws of any governmental authority, domestic or foreign; and (iii) the Ad Content as contemplated herein will not contain any material that is pornographic, obscene, defamatory, libelous, fraudulent, misleading, threatening, hateful, or racially or ethnically objectionable. Notwithstanding the foregoing, LegalZoom hereby grants Partner a limited non-exclusive, worldwide royalty-free license to use, reproduce, reformat, publicly display, and distribute any Articles for a period of twelve (12) months from the date the Article is initially published by Partner.
3.2 Although the Parties may discuss various aspects of the manner in which the Ad Content may be presented on the Partner Website or Partner Marketing Materials, LegalZoom is under no obligation to do so and will not be responsible for the accuracy or appropriateness of the Partner Website or Partner Marketing Materials. Partner shall not edit or modify any Ad Content approved by LegalZoom except as reasonably necessary for technical purposes, sizing, and the placement of location of the Ad Content on the Partner Website or Partner Marketing Materials. Once published, Partner shall provide LegalZoom three (3) business days prior to removing the Ad Content unless the Ad Content poses a legal liability, as determined in Partner’s reasonable discretion.
3.3 As between the Parties and excluding the use of any Partner Marks, LegalZoom retains all right, title and interest in and to the Ad Content, the LZ Marks, the Landing Page, the Articles, and the LegalZoom Websites (including, without limitation, any and all content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel", trademarks and other items posted thereon or used in connection or associated therewith) along with all intellectual property rights associated with any of the foregoing. All goodwill arising out of Partner’s use of any of the LZ Marks or Ad Content shall inure solely to the benefit of LegalZoom.
3.4 As between the Parties and excluding the use of any Ad Content or LZ Marks, Partner retains all right, title and interest in and to the Partner Marks, the Partner Website, and the Partner Marketing Materials (including, without limitation, any and all content, data, URLs, domain names, technology, software, code, user interfaces, "look and feel," trademarks and other items posted thereon or used in connection or associated therewith) along with all intellectual property rights associated with any of the foregoing. All goodwill arising out of LegalZoom’s use of any of the Partner Marks shall inure solely to the benefit of Partner.
3.5 Neither Party shall 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 the other Party in each instance.
Section 4. Payment and Reporting
4.1. Referral Fee. LegalZoom shall owe and pay Partner a fee equal to the amount of the Commission Rate for each Partner Customer who achieves a Qualifying Event (the, “Referral Fee”). Unless stated otherwise in Part A., the Referral Fee will be a one-time payment paid by LegalZoom for each Referred Customer and not a recurring or residual obligation. Unless stated otherwise in Part A., the Commission Rate for Advantage Products refers to the Net Receipts received by LegalZoom for each Referred Customer during the calendar month. “Net Receipts” means Gross Receipts minus Deductions. Partner acknowledges that any order placed over the phone shall not constitute a Qualifying Event and will not entitle Partner to receipt of a Referral Fee.
4.2. Payment Due Date; Monthly Reports. Within thirty (30) days of the completion of the calendar month, LegalZoom, or a third party service provider, will (a) provide access to a statement detailing the data and computations used by LegalZoom in arriving at the amount of the Referral Fees for the prior month (“Monthly Report”), and (b) will make payment of the Referral Fees set forth in the Monthly Report. At minimum, the Monthly Report will include the number of Referred Customers and the total Referral Fee for the calendar month. If the Monthly Report is provided by a third party service provider, LegalZoom will provide Partner with the information necessary to access the Monthly Report. The Monthly Report will not include any personally identifiable information for any Referred Customer, including names, contact information, or payment information.
4.3. Late Fees. All undisputed amounts owed by LegalZoom to Partner hereunder that are not timely paid according to the terms of this Agreement shall bear interest at a rate equal to the lesser of 1.0% per month (12% per annum) and the maximum rate permitted by applicable law from the date such payment was due until the date paid in full (including interest). LegalZoom will not be responsible for any fees associated with collection of allegedly due amounts other than as provided in Section 10.8.
4.4. Expenses. Partner is responsible for and must pay all expenses which are incidental to its activities and responsibilities under this Agreement, including, but not limited to, employees' and subcontractors' compensation; costs of delivering materials to LegalZoom and Partner Customers; programming costs; and creating, producing or revising Partner Marketing Materials. Partner shall assume sole responsibility for any debts or liabilities that may be incurred by Partner in fulfilling the terms of this Agreement and shall be solely responsible for the payment of all foreign, federal, state and local taxes which may accrue because of this Agreement (other than any such taxes based upon the income of LegalZoom) including, but not limited to, sales, use, franchise, value-added, or import taxes, custom duties, or other taxes that may be assessed by any jurisdiction.
Section 5. Representations and Warranties.
5.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that as of the Effective Date and during the duration of the Term:
5.1.1. It is duly organized and validly existing under the laws of the state in which it is organized and in which it conducts business.
5.1.2. It has the full authority and corporate power to enter into this Agreement and to perform its obligations hereunder.
5.1.3. Neither the execution, delivery or performance of this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance with any provision hereof, shall conflict with or result in a breach or default under any agreement binding upon the Party or its property, or violate any provision of any law, statute, rule, regulation, or order, writ judgment, injunction or decree applicable to the Party or its property.
5.1.4. This Agreement represents a valid obligation of the Party and is fully enforceable against the Party according to its terms.
5.1.5. It or its officers or directors are not a party to any pending litigation which could adversely affect the other Part’s obligations hereunder.
5.2. Partner represents and warrants to LegalZoom that as of the Effective Date and for the duration of the Term:
5.2.1. Partner holds the necessary rights and licenses to grant the rights to the Partner Marks to LegalZoom as set forth in this Agreement.
5.2.3. Partner shall perform its obligations under this Agreement and provide Partner Products in a highly professional manner consistent with high industry standards and practices.
5.2.4. Partner shall operate its business in strict accordance with all applicable laws, regulations, codes, and standards of government agencies, authorities, and self-regulatory organizations with jurisdiction over it and its business and in any jurisdiction in which it does or is deemed to be doing business.
5.2.5. Partner Website and Partner Marketing Materials do not contain any viruses, Trojan horses, back doors, Easter eggs, trap doors, cancelbots, worms, time bombs, or other computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, computer program, data or personal information.
5.2.6. Partner Marks and Partner Marketing Materials shall not violate any third party intellectual property rights.
Section 6. Authority to Act
6.1 Limitation of Agency. Each Party acknowledges and agrees that neither such Party, its Affiliates, nor any of the respective officers, directors, employees, agents, or representatives of either shall have any authority or obligation to engage in or execute any contract on behalf of the other Party or solicit, negotiate, bind the goods, services, or course of business of such other Party.
6.3 Duty to Inform of Customer Concerns. If either Party receives any material complaint or inquiry concerning the goods, service, Website, or course of business of the other Party, such Party shall notify the other Party immediately. Each Party agrees to provide its cooperation to the other Party in answering inquiries or in resolving complaints.
Section 7. Confidential Information
7.1. In the course of negotiation of and carrying out its obligations under this Agreement, each Party may have disclosed or may disclose to the other Party certain Confidential Information. As used in this Agreement, the term “Confidential Information” means all nonpublic information currently existing or subsequently created disclosed by a Party to the other Party, directly or indirectly, that the disclosing Party designates as being confidential or which, under the circumstances surrounding disclosure, should be treated as confidential. Confidential Information includes, but is not limited to, the terms of this Agreement; nonpublic information related to customers, vendors, employees; and nonpublic information such as financial information, technical information, business plans, methods of operation, marketing concepts, internal corporate policies, products, pricing, sales, and other proprietary information. Confidential Information does not include any information that (i) was or becomes generally available to the general public through no fault of the receiving Party’s, (ii) the receiving Party previously knew prior to the disclosure (as shown by the receiving Party’s files and records immediately prior to the time of disclosure) and not subject to an existing agreement of confidence between the Parties, (iii) was rightfully in the receiving Party’s possession free of any obligation of confidence and obtained from a third party who is not bound to keep the information confidential or prohibited from disclosing the information by a contractual, legal, or fiduciary obligation, (iv) the receiving Party independently developed without reference to or reliance upon any Confidential Information (as shown by documents and other competent evidence in the receiving Party’s possession), or (v) the disclosing Party expressly consented to disclosure of the information in writing, but only to the extent of the consent.
7.2. Each Party shall not disclose the other Party’s Confidential Information to any third party without the other Party’s prior written consent and shall use Confidential Information only for the limited purpose of and as necessary to carry out its obligations under this Agreement. Neither Party shall alter, misappropriate, use or misuse, transfer, sell, copy, deliver, or divulge the other Party’s Confidential Information for any other purpose. Each shall use at least the same degree of care that it uses to protect its own Confidential Information of a similar nature and value, but in no event less than a reasonable standard of care, to protect the confidentiality and integrity of the other Party’s Confidential Information according to the provisions of this Agreement. Each Party 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 and whose duties require access to the information and then only for the purposes contemplated by this Agreement.
7.3. Notwithstanding the foregoing, either Party may disclose the other Party’s Confidential Information (a) in response to a valid order of a court or other government body with appropriate jurisdiction over the applicable Party and the subject matter of the information; (b) as required by applicable law, regulation or rule by a government body with appropriate jurisdiction over the applicable Party and the subject matter of the information; and (c) as necessary to establish the rights of either Party herein; but, in each case, only to the extent of and for the purposes of the law, regulation, or order and only after the other Party is afforded a reasonable opportunity to oppose the disclosure or seek protection against further disclosure of the information.
7.4. Each Party’s Confidential Information is and shall remain its sole property. Neither Party obtains any ownership or license interest in any of the other Party’s Confidential Information by virtue of its disclosure under this Agreement. Each Party shall return to the other Party or, at its option, destroy all of the other’s Confidential Information in its possession or control upon termination of this Agreement or at the other Party’s request at any other time. Each Party shall, upon request, provide the other with an affidavit of destruction for any of the other’s Confidential Information it elects to destroy under this Section 7.4.
7.5. The Parties acknowledge that the harm caused by the wrongful disclosure of Confidential Information will be difficult, if not impossible, to assess on a monetary basis alone and that legal damages may not be sufficient compensation for the wrongful disclosure. Therefore, either Party may enforce its rights under this Section 7 by equitable means, including, but not limited to, injunctive relief, in addition to any other remedies to which it is otherwise entitled.
7.6. Except for that portion of Confidential Information that is considered a trade secret under applicable law, the provisions of this Section 7 will survive termination of this Agreement for three (3) years after its expiration or termination. For that portion of Confidential Information that is considered a trade secret under applicable law, the provisions of this Section 7 will survive termination of this Agreement for the later of the three (3) year period or such time as the information is no longer considered a trade secret.
Section 8. Indemnification and Insurance
8.1. LegalZoom (“LegalZoom Indemnifying Party”) shall indemnify, defend, and hold harmless Partner and its officers, directors, employees and agents (“Partner Indemnified Parties”) from and against any and all action, cause of action, suit, claim, demand, settlement, judgment, controversy, loss, obligation, damage, cost, lien, fine, penalty, charge, court cost, payment, liability and expense (including reasonable attorneys’ fees and expenses) which may be asserted against, imposed upon, or suffered by any of the Partner Indemnified Parties, or which may be claimed by any person as a result of, arising out of or related to (i) the breach of any of the representations or warranties made by LegalZoom in this Agreement and (ii) the failure of LegalZoom to perform its obligations under this Agreement (“Partner Claim”). Partner (“ Partner Indemnifying Party”) shall indemnify, defend, and hold harmless LegalZoom, its Affiliates, and each of their respective mirror, co-branded or derivative Websites, officers, directors, employees and agents (“LZ Indemnified Parties”) from and against any and all action, cause of action, suit, claim, demand, settlement, judgment, controversy, loss, obligation, damage, cost, lien, fine, penalty, charge, court cost, payment, liability and expense (including reasonable attorneys’ fees and expenses) which may be asserted against, imposed upon, or suffered by any of the Indemnified Parties, or which may be claimed by any person as a result of, arising out of or related to (a) Partner’s business, (b) any unauthorized use of LZ Marks, or Partner Marketing Material; (c) any relationship, agreement or transaction between Partner and any of Partner’s customers, employees, agents, subcontractors, vendors, suppliers, regulatory agencies and any other third parties (d) the violation by Partner of Partner’s policies, procedures and regulations, (e) the breach of any of the representations or warranties made by Partner in this Agreement and (f) the failure of Partner to perform its obligations under this Agreement (“LZ Claim”).
8.2 If any Partner Claim or LZ Claim (“Claim”) shall be brought against any of the LZ Indemnified Parties or Partner Indemnified Parties, respectively, (“Indemnified Parties”) in respect to any allegation of which indemnity may be sought from the Partner Indemnifying Party or LZ Indemnifying Party, respectively, (the “Indemnifying Parties”), the Indemnified Party shall promptly notify the Indemnifying Party of any such Claim of which it becomes aware and shall: (a) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such Claim; and (b) be entitled to participate at its own expense in the defense of any such Claim. The Indemnified Party agrees that the Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such Claim. However, the Indemnifying Party shall not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests, without the prior written consent of the Indemnified Party.
8.3. Each Party shall, during the term of this Agreement and for a period of one (1) year thereafter, procure and maintain, at its own cost and expense, liability insurance in amount reasonably expected in its industry, but in no event less than necessary to meet its obligations hereunder. Notwithstanding the foregoing, at a minimum, each Party shall procure and maintain, during the term of this Agreement (i) general liability insurance covering bodily injury and property damage in the amount of $1,000,000 per occurrence and (ii) workers compensation with limits meeting applicable statutory requirements. Within seven (7) calendar days of LegalZoom’s request, Partner shall deliver to LegalZoom certificates of insurance evidencing the requirements in this section.
8.4. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR EITHER OF THEIR RESPECTIVE MIRROR, CO-BRANDED, OR DERIVATIVE WEBSITES, SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AND/OR AGENTS (“RELATED PARTIES”) BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, TOLL FRAUD, LOSS OF USE, LOSS OF DATA, OR FAILURE TO REALIZE SAVINGS OR BENEFITS) ARISING UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE TOTAL AGGREGATE LIABILITY OF RELATED PARTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED AMOUNTS ACTUALLY PAID BY LEGALZOOM TO PARTNER DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM FOR DAMAGES UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LEGALZOOM DOES NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LEGALZOOM WEBSITE; ANY MIRROR, CO-BRANDED, OR DERIVATIVE WEBSITES; THE ADVANTAGE PROGRAM; OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ADDITIONALLY, ALL SERVICES PROVIDED BY LEGALZOOM PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EXPRESS OR IMPLIED. LEGALZOOM DOES NOT WARRANT THAT ITS SERVICES OR THE LEGALZOOM WEBSITE SHALL BE UNINTERRUPTED OR ERROR FREE, NOR DOES LEGALZOOM MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS, INCLUDING, BUT NOT LIMITED TO, CONVERSION RATES OR REFERRAL FEES, THAT MAY BE OBTAINED BY PARTICIPATION IN THE ADVANTAGE PROGRAM. IN ADDITION, LEGALZOOM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE PARTNER WEBSITE(S) AND WITH RESPECT TO ANY PRODUCT OR SERVICE OFFERED OR SOLD THROUGH IT. FURTHER, NOTHING HEREIN SHALL BE DEEMED TO BE AN APPROVAL, ENDORSEMENT OR RECOMMENDATION OF PARTNER BY LEGALZOOM. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTIES’ BREACH OF SECTION 3 OR 7.
Section 9. Term
9.1. Term. This Agreement becomes effective on the Effective Date and shall remain in effect for the Term Duration, as set forth in Part A., or until terminated as described herein (“Term”).
9.2.1 Either Party may terminate this Agreement, with or without cause, at any time with thirty (30) days’ prior written notice.
9.2.2 Either Party may terminate this Agreement at any time, upon written notice to the other Party, if such other Party breaches any of its material obligations expressly set forth in this Agreement and that breach is not cured within ten (10) calendar days after written notice of breach from the non-breaching Party.
9.2.3 Either Party may terminate this Agreement immediately, upon written notice to the other Party, if such other Party (i) enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar laws of the United States or any state of the United States; (ii) or any of its principals, officers, controlling shareholders, members, or managers, is in involved in matters that the terminating Party reasonably determines shall have an adverse effect upon the terminating Party’s goodwill or reputation; or (iii) breaches Section 3 or Section 7 above. LegalZoom may terminate this Agreement immediately, upon written notice, if it determines in its sole discretion that Partner Website or Partner Marketing Materials violates Section 5.2.6.
9.3. Effects of Termination.
9.3.1. On the effective date of termination of this Agreement, (a) the Parties shall cease and discontinue Partner’s participation in the Advantage Program; (b) Partner shall remove all LZ Marks and Ad Content from the Partner Website and Partner Marketing Materials; (c) LegalZoom shall remove, cease, and discontinue the Landing Page, if any, and any other use of the Partner Marks; (d) each Party shall return or destroy the Confidential Information of the other Party; and (e) LegalZoom shall pay Partner all fees then accrued and due.
9.3.2. The following provisions shall survive the termination of the Agreement: Section 1 (Definitions), Section 3.3, Section 3.4, Section 4 (Payment and Reporting), Section 7 (Confidential Information), Section 8 (Indemnification), Section 9.3 (Effects of Termination), and Section 10 (Miscellaneous).
Section 10. Miscellaneous
10.1. Force Majeure. To the extent permitted by law, in the event that either Party fails, in whole or in part, to fulfill its obligations under this Agreement, including payment obligations, as a consequence of a fire, flood, earthquake, or other similar act of God (“Force Majeure Event”), the failure to perform shall not be considered a breach of this 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 this Agreement. If any Force Majeure Event continues in excess of seven (7) calendar days, the non-disabled Party may terminate this Agreement upon notice to the disabled Party.
10.2. Assignment. Partner may not assign this Agreement nor any rights or obligations under this Agreement, in whole or in part, to any third party without LegalZoom’s prior express written consent and approval. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign, subcontract and delegate any part of this Agreement in connection with a merger, consolidation, sale of all or substantially all of its assets to another entity. Any purported assignment or delegation in violation of the foregoing is void. The terms and conditions of this Agreement shall bind and inure to the benefit of each Party’s respective successors and permitted assigns.
10.3. Relationship of the Parties. Partner and LegalZoom are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment or agency relationship between Partner and LegalZoom. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. Each Party is solely responsible for the operation and management of its business, generally, and nothing in this Agreement is intended or should be construed to create any obligation or liability for either Party with respect to any aspect of the operation of the other’s business, including, without limitation, operation of or content on the other Party’s Website.
10.4. Waiver. The failure of either Party to (a) insist upon or enforce strict performance by the other Party of any provision of this Agreement or (b) exercise any right or remedy under this Agreement, shall not (x) be construed as a waiver or relinquishment of such Party’s right to enforce any such provision or right in any other instance or (y) preclude either Party from exercising or pursuing any other rights or remedies available to it under law or as provided in this Agreement. No waiver of any breach of any provision of this 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.
10.5. Severability. Whenever possible, each provision of this Agreement shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule 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 this Agreement with the balance of this Agreement continuing in full force and effect.
10.6. Modification. This Agreement may not be modified in any manner except in a written instrument executed by the Parties that specifically refers to this Agreement and expressly recites the purpose of the modification.
10.7. Governing Law and Arbitration. This Agreement is deemed to be made under and is to be construed according to the laws of the State of California. The Parties shall seek to resolve any dispute arising out of this Agreement through good faith negotiations. If no agreement can be reached regarding a dispute within thirty (30) days after notification in writing by either Party to the other concerning such dispute, the dispute shall be settled by arbitration to be conducted in Los Angeles County, California before an arbitrator to be mutually agreed upon. LegalZoom and Partner agree to settle any disputes between the Parties by arbitration in accordance with the rules then in effect by the American Arbitration Association. The costs of arbitration including attorney’s fees shall be reimbursed to the prevailing Party by the non-prevailing Party. Notwithstanding the above, either Party may seek preliminary or final injunctive relief in the event of the unauthorized disclosure of such Party’s Confidential Information or violations against such Party’s intellectual property infringement as set forth in this Agreement.
10.8. Attorneys’ Fees. In the event any dispute between the Parties results in arbitration or litigation, the prevailing Party in any such action shall be entitled to recover from the other, its reasonable attorneys’ fees and costs, including expert witness fees, if any.
10.9. Headings, Recitals, Writing. The section headings in this Agreement have been inserted as a matter of convenience in reference, only, and are not intended nor should they be construed to convey any substantive content in interpretation of this Agreement. The recitals are intended and should be construed to be a part of this Agreement for all intents and purposes. Any reference to approval or consent in writing will include through email with acknowledgement by the receiving Party.
10.10. Notice. Unless otherwise specifically stated, all notices pursuant to this Agreement shall be in writing and shall be deemed to have been duly given to the other Party (a) on the day it is transmitted by facsimile with confirmation; (b) on the day after being sent by Federal Express (or comparable overnight delivery service), all fees prepaid; or (c) on the second day after being mailed by United States certified or registered mail, postage prepaid. If notice is sent via overnight delivery service or U.S. mail, it shall be sent to the other Party at the address set forth below (or at such other address as shall be given in writing by either Party to the other).
PARTNER: To: Partner Notice Address (as set forth in Part A above)
LEGALZOOM: To: The LegalZoom Business Contact (as set forth in Part A above)
With a copy to: LegalZoom.com, Inc.
101 N. Brand Blvd., 11th Floor
Glendale, CA 91203
Attn: Associate General Counsel
10.11. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous oral or written arrangements or understandings relating thereto.
10.12. Counterparts. The Parties agree that (i) this 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 this 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.