These Terms and Conditions are part of the LegalZoom Small Business Resource Agreement. These Terms and Conditions may have been updated since the Agreement was initially entered, and references or terms may have changed. Please see the Definitions section for additional information.
1. DEFINITIONS. Any capitalized terms not defined herein shall have the meaning ascribed in the SBRA.
a. “Ad Content” shall mean Articles, graphic images, text, banners, buttons, description of Partner Products, and any other content, language, or images, provided by Partner to LegalZoom, for purposes of performing or fulfilling the terms of this Agreement including, but not limited to, the Partner Marks and Partner Links.
b. “Affiliate” shall 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.
c. “Article” shall mean any written article submitted to LegalZoom by Partner intended for publication in LegalZoom’s monthly electronic newsletter, newsletter archive, on the LegalZoom Website, or any other marketing asset associated with LegalZoom.
d. “Base Fee” shall have the meaning ascribed to such term on the SBRA.
e. “Base Fee Report” shall have the meaning ascribed to such term on the SBRA.
f. “Claim” shall have the meaning ascribed to such term below.
g. “Co-Branded Landing Page” shall mean a Landing Page that prominently displays at least one Partner Mark and at least one LegalZoom Mark.
h. “Confidential Information” shall have the meaning ascribed to such term below.
i. “Customer Data” shall have the meaning ascribed to such term on the SBRA.
j. “Customer Data Lead” shall have the meaning ascribed to such term on the SBRA.
k. “Customer Information” shall have the meaning ascribed to such term below.
l. “Data Security Plan” shall have the meaning ascribed to such term below.
m. “Deductions” shall have the meaning ascribed to such term on the SBRA.
n. “Disclosing Party” shall have the meaning ascribed to such term below.
o. “Effective Date” shall have the meaning ascribed to such term on the SBRA.
p. “Force Majeure Event” shall have the meaning ascribed to such term below.
q. “Gross Receipts” shall have the meaning ascribed to such term on the SBRA.
r. “Indemnified Party” shall have the meaning ascribed to such term below.
s. “Indemnifying Party” shall have the meaning ascribed to such term below.
t. “Keyword Buy” shall have the meaning ascribed to such term below.
u. “Landing Page” shall mean a unique landing page on the Partner Website that is the immediate destination of the Partner Link and is also, primarily, a specific offer of Partner Products to LegalZoom Customers.
v. “LegalZoom Customer” shall mean any visitor or user of the LegalZoom Website or any other existing or potential customer of LegalZoom or any of its Affiliates.
w. “LegalZoom Marks” shall 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.
x. “LegalZoom Website” shall mean the Website that is operated by LegalZoom and currently accessible primarily through its homepage located at http://www.legalzoom.com.
y. “LZ Claim” shall have the meaning ascribed to such term below.
z. “LZ Indemnified Parties” shall have the meaning ascribed to such term below.
aa. “LZ Indemnifying Party” shall have the meaning ascribed to such term below.
bb. “LZ Marketing Materials” shall have the meaning ascribed to such term below.
cc. “LZ PII” shall mean that information of any LegalZoom Customer that (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, answers to security questions, and other personal identifiers).
dd. “LZ Related Parties” shall have the meaning ascribed to such term below.
ee. “Monthly Report” shall have the meaning ascribed to such term on the SBRA.
ff. “Net Receipts” shall have the meaning ascribed to such term on the SBRA.
gg. “New Product” shall have the meaning ascribed to such term below.
hh. References to the “Order Form” shall be equivalent to a reference to the SBRA.
ii. “Partner Claim” shall have the meaning ascribed to such term below.
jj. “Partner Indemnified Party” shall have the meaning ascribed to such term below.
kk. “Partner Indemnifying Party” shall have the meaning ascribed to such term below.
ll. “Partner Link” shall mean any link that takes the Internet user from the LegalZoom Website or LZ Marketing Materials to Partner’s Website, whether it is in the form of text, banner, button or otherwise.
mm. References to “Part A” shall be equivalent to a reference to the SBRA.
nn. “Partner Marks” shall mean the Partner names, trademarks, service marks, trade names, logos, other branding elements and other intellectual property used by Partner in identifying its business including, but not limited to the Partner Trademarks (as set forth on the SBRA).
oo. “Partner Products” shall mean any and all products and services that are offered for sale or distribution by Partner excluding the Partner Product Exclusions (as set forth on the SBRA).
pp. “Partner Website” shall mean, collectively: (a) the Website that is currently accessible primarily through its home page located at the Partner URL (as set forth in on the SBRA) and (b) other Websites owned and/or operated by Partner.
qq. “Qualifying Event” shall have the meaning ascribed to such term on the SBRA.
rr. “Qualifying Sale” shall have the meaning ascribed to such term on the SBRA.
ss. “Record Retention Period” shall have the meaning ascribed to such term below.
tt. “Records” shall have the meaning ascribed to such term below.
uu. “Receiving Party” shall have the meaning ascribed to such term below.
vv. “Referral Fee” shall have the meaning ascribed to such term on the SBRA.
ww. “Referred Customer” shall mean any (a) LegalZoom Customer who, during the Term, through the use of the Partner Link, the LegalZoom’s Website, LZ Marketing Materials or other referral from LegalZoom, visits Partner’s Website, purchases, orders or registers for any Partner’s Product with or without a free trial period or (b) any Customer Data Lead. For the purposes of clarification and without limitation, a LegalZoom Customer shall be considered a “Referred Customer” and continue to be considered a “Referred Customer” if (a) at the time of the referral from LegalZoom, the Customer is an existing customer of Partner, (b) if the Customer used to be a customer of Partner in the past but is not a customer of Partner at the time of LegalZoom’s referral of such Customer to Partner, (c) the Customer enters into one type of Partner Product but subsequently participates in additional or different Partner Products, (d) the Referred Customer changes its name, EIN, other identifying data or location but continues to participate in a Partner Product, and/or (e) has never transacted with Partner in the past.
xx. “Representative” shall have the meaning set forth below.
yy. “Rev-Share” shall have the meaning ascribed to such term on the SBRA.
zz. “Rev-Share Report” shall have the meaning ascribed to such term on the SBRA.
aaa. “SBRA” shall mean the LegalZoom Small Business Resource Agreement.
bbb. “Search Engine” shall have the meaning ascribed to such term below.
ccc. “Security Breach” shall mean (i) any act or omission that compromises either the security, confidentiality, or integrity of LZ PII or the physical, technical, administrative, or organizational safeguards put in place by Partner or by LegalZoom should Partner have access to LegalZoom’s systems, that relate to the protection of the security, confidentiality, or integrity of LZ PII, or (ii) receipt of a complaint in relation to the privacy and data security practices of Partner or a breach or alleged breach of this Agreement relating to such privacy and data security practices. Without limiting the foregoing, a compromise shall include any unauthorized access to or disclosure or acquisition of LZ PII.
ddd. “SBR Policies” shall mean the policies set forth in below as ‘SBR Policies’ and any policies related to the SBR Program available on the LegalZoom Website.
eee. “SBR Program” shall mean the arrangement whereby LegalZoom provides means through which certain LegalZoom Customers may have access or exposure to the Websites, goods and services offered by various business entities including, but not limited to Partner, in order that such business entities may have an opportunity to directly offer each of their own respective goods and/or services to certain LegalZoom Customers.
fff. “Term” shall have the meaning ascribed to such term below.
ggg. “Website” shall 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.
2. SBR PROGRAM.
a. Ad Content. LegalZoom shall have the right to include Ad Content provided by Partner on: (a) the LegalZoom Website; and (b) if the Parties mutually agree in writing (including email), other marketing materials related to LegalZoom or its Affiliates (“LZ Marketing Materials”) in connection with the SBR Program. The Parties will work together to develop the manner in which the Ad Content is presented on the LegalZoom Website and the LZ Marketing Materials according to the terms herein. LegalZoom shall have the right to publish, display, or reproduce any Article in any electronic newsletter, newsletter archive, on the LegalZoom Website, or any other marketing asset associated with LegalZoom.
b. Partner’s Business. Partner bears full responsibility and risk and liability for all aspects of the conduct and operations of its business including, but not limited to, (a) offers of all products and services sold or licensed on Ad Content and the Partner Website; (b) Partner’s relationship with visitors and users of Partner Website, vendors, licensees, licensors, regulatory agencies, governmental bodies and other third parties; and (c) Partner’s relationship with its customers, including, but not limited to, Referred Customers. Partner may add, delete, or modify the Partner Products and its 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, Partner shall provide LegalZoom with revised and correct Ad Content with at least thirty (30) days prior written notice; and provided further that, Partner shall charge Referred Customers no more than similarly situated customers in Partner’s normal course of business and shall otherwise treat such Referred Customers on terms at least as favorable as it generally offers its other similarly situated customers.
c. New Partner Products. If Parties mutually agree in writing (including email), additional products or services which Partner offers for sale or distribution that were not available as of the Effective Date (“New Product”) shall be included and considered part of the definition of “Partner Products” and are subject to all applicable provisions in this Agreement. Partner shall provide LegalZoom with written notice of any New Product no later than thirty (30) days prior to the release of the New Product for sale or distribution.
d. Landing Page.
i. If Parties mutually agree in writing (including email), Partner shall provide LegalZoom a Partner Link that immediately directs a user to the Landing Page. As between Partner and LegalZoom, Partner shall have the sole right and responsibility of creating and maintaining the Landing Page on the Partner’s Website. The Landing Page shall have the ability to track all traffic, orders and sales of Partner Products from the Landing Page.
ii. If Parties mutually agree in writing (including email), the Landing Page shall be a Co-branded Landing Page. Prior to public distribution or display, the Co-Branded Landing Page shall be approved in writing (including email) by each Party with LegalZoom’s review and approval limited to the compliance of the LegalZoom Marks to LegalZoom corporate standards. LegalZoom hereby grants Partner a limited, non-exclusive, worldwide, non-transferable, non-sublicensable, revocable license to display the LegalZoom Marks on the Co-Branded Landing Page provided that (a) any use of the LegalZoom Marks on the Co-Branded Landing Page is consistent with the then-current LegalZoom corporate usage guidelines for the appearance of LegalZoom Marks and (b) LegalZoom has provided its written approval of the Co-Branded Landing Page.
iii. Users who arrive at the Partner Website through a Partner Link from the LegalZoom Website shall be returned to the LegalZoom Website upon completion of their visit. Partner shall not redirect the LegalZoom Customer to a Website other than the one from which the Partner Link to the Partner Website originated.
3. SBR POLICIES.
a. Marketing Restrictions. The following section is applicable only to such Agreements where Partner receives any Customer Data Lead from LegalZoom and only apply to Partner prior to such Referred Customer purchasing a Partner Product from Partner. Partner shall adhere to all the following with respect to any communication with a Referred Customer prior to such customer becoming a customer of Partner:
i. Partner shall contact each Referred Customer a maximum of two (2) times to inquire of their interest in the Partner Products.
ii. Partner shall not contact a Referred Customer after such Referred Customer or LegalZoom has requested that Partner cease contacting such Referred Customer until and unless such Referred Customer or LegalZoom subsequently requests further or additional information for such Referred Customer.
iii. Partner shall not offer, sell or market any product or service to Referred Customer that is not a Partner Product until and unless such Referred Customer or LegalZoom subsequently requests further or additional information.
iv. Partner shall not transfer, disclose, sell, or trade information regarding a Referred Customer to its Affiliate or any third party.
v. In communications with Referred Customers, Partner shall substantially adhere to the sales scripts that have been approved in writing or email by LegalZoom.
b. Customer Information. Partner shall not use any information LegalZoom provides to Partner or that Partner obtains directly from individuals who access the Partner Website through the Partner link pursuant to this Agreement, whether or not the individual completes a purchase from Partner, (“Customer Information”) for any purpose other than to fulfill a purchase order for Partner Products from the individual. Without limiting the generality of the foregoing, Partner shall not:
i. Use Customer Information to send follow-up solicitations for the sale of any other product or service than the Partner Product the individual ordered;
ii. Sell, transfer, license, sublicense, reuse, or otherwise disseminate Customer Information except to the limited extent Partner is legally required to do so;
iii. Conduct any unsolicited marketing or other communication by any media, including, but not limited to, chain letters, junk mail, “spamming,” and telephone solicitations, to any individual who has not given specific permission to receive such marketing; or
iv. Transmit any messages or materials that (i) are unlawful, (ii) contain any content that reasonably would be considered to be an act or acts against public policy, discrimination of any kind, harassment, libelous, abusive, threatening, harmful, vulgar, or obscene, or (iii) otherwise constitute a criminal offense, give rise to civil liability, or encourage conduct that could constitute a criminal offense or give rise to civil liability, or (iv) otherwise violate any applicable local, state, national, or international law or regulation.
c. Keyword Buy Policy. Partner shall adhere to the following principals of LegalZoom’s Keyword Buy Policy:
i. For purposes of this Section, the term “Keyword Buy” means the purchase of rights to direct presentation of the purchaser’s advertisements in response to search queries using the given keyword in a Search Engine. The term “Search Engine” means any software that acts as a service by searching an index or database on the Internet and returns relevant matches based on information typed into a search query.
ii. LegalZoom owns the trademark “LegalZoom.com.” Partner shall not bid on “LegalZoom,” “LegalZoom.com,” or “www.LegalZoom.com,” or any other mark that is confusingly similar to or a derivative of such marks or LegalZoom’s name, including, without limitation, misspellings, with any Search Engine. Any such bid shall be considered and treated as an infringement of LegalZoom’s intellectual property rights.
iii. Partner shall not use links that automatically redirect a user to the LegalZoom Website in its search ads.
iv. Partner shall not use “LegalZoom” or any variation of LegalZoom in its search ad creative content.
v. Nothing in this Agreement is intended or should be construed to prohibit or limit Partner’s rights and abilities to promote the Partner Website and Partner Products by any media, including, without limitation, via “pay-per-click” advertisements, and, in compliance with this Agreement, Partner may participate in Keyword Buys through Search Engines to promote the goods and services offered via the Partner Website.
4. LICENSE(S) TO LEGALZOOM.
a. Partner Links, Ad Content, and LZ Marketing Materials. Partner hereby grants LegalZoom a limited non-exclusive, worldwide royalty-free license to use, reproduce, reformat, publicly display, publicly perform and distribute Partner Links and the Ad Content on the LegalZoom Website and, if the Parties mutually agree in writing (including email), LZ Marketing Materials. At any time, Partner may submit written requests to modify or exclude Ad Content from the LegalZoom Website. LegalZoom will make commercially reasonable efforts to accommodate such requests as soon as practicable. Partner shall provide LegalZoom with the appropriate Ad Content consistent with the then-current criteria and specifications of SBR Program and as otherwise requested by LegalZoom. Partner represents and warrants that throughout the Term: (i) it shall have all necessary rights, licenses, permits and clearances to license the Ad Content to LegalZoom as set forth herein and to offer, sell and/or license the goods and services that are offered through the Ad Content and such will not violate any applicable laws or regulations or any third-party rights, (ii) the Ad Content does not violate or infringe any right of privacy, personality or publicity, or intellectual property right under the laws of any governmental authority, domestic or foreign, or any other right of any third party; (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; (iv) LegalZoom’s use of the Ad Content shall not result in a violation of any laws including, but not limited to, laws regarding intellectual property, unfair competition, anti-discrimination or false advertising consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and (v) the Ad Content shall not, by any method, misdirect or mislead Internet users.
b. Articles. Partner hereby grants LegalZoom a limited exclusive, worldwide royalty-free license to use, reproduce, reformat, publicly display, and distribute Articles for a period of six (6) months from the date the Article is initially published by LegalZoom. After the six (6) month period from the initial publication of the Article, Partner hereby grants LegalZoom a limited non-exclusive, worldwide royalty-free license to use, reproduce, reformat, publicly display, publicly perform and distribute the Articles.
5. RESPONSIBILITY FOR AD CONTENT. Although LegalZoom may review Ad Content before it is used pursuant to this Agreement, LegalZoom is under no obligation to do so and will not be responsible for the accuracy or appropriateness of any Ad Content. Although the Parties may discuss various aspects of the manner in which the Ad Content may be presented on the LegalZoom Website or LZ Marketing Materials, LegalZoom shall not edit or modify any Ad Content approved by Partner (which approval may be completed by email and fax) except as reasonably necessary for technical purposes, sizing, and the placement of location of the Ad Content on the LegalZoom Website or LZ Marketing Materials. LegalZoom reserves the right, within its sole discretion, to reject, remove or discontinue any Ad Content from the LegalZoom Website and LZ Marketing Materials at any time.
6. RIGHTS RETAINED BY PARTIES.
a. Rights Retained by Partner. As between the Parties and excluding the use of any LegalZoom Marks, except as explicitly set forth herein, Partner retains all right, title, and interest in and to the Ad Content, the Partner Marks, and the Partner 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 LegalZoom’s use of any of the Partner Marks shall inure solely to the benefit of Partner.
b. Rights Retained by LegalZoom. LegalZoom retains all right, title and interest in and to the LegalZoom Marks, the LegalZoom Website, and the LZ 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 Partner’s use of any of the LegalZoom Marks shall inure solely to the benefit of LegalZoom.
7. TERM AND TERMINATION.
a. Term. The term of this Agreement shall commence as of the Effective Date set forth on the SBRA and shall continue in full force and effect until terminated as set forth herein (“Term”). In the event of a material breach of any of Partner’s obligations under this Agreement, LegalZoom may terminate this Agreement by providing three (3) days’ written notice. In the event of a material breach of LegalZoom’s material obligations under this Agreement, Partner may terminate this Agreement after Partner has provided LegalZoom with prior written notice and thirty (30) days to cure such breach. 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) any of a party’s 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) a party has violated or is believed to be violating the confidentiality obligations hereunder. LegalZoom may terminate this Agreement immediately in the event that it has reason to believe that Partner is violating its license requirements or payment obligations hereunder.
b. Termination for Convenience. Either party may terminate this Agreement, with or without cause, at any time with thirty (30) days prior written notice.
a. Effect of Termination. On the effective date of termination of this Agreement, (a) the parties shall cease and discontinue Partner’s participation in the SBR Program; (b) LegalZoom shall remove the Ad Content from the LegalZoom Website and LZ Marketing Materials; (c) Partner shall remove, cease, and discontinue the Co-Branded Landing Page, if any, and any other use of the LegalZoom Marks; (d) Partner shall fulfill all remaining orders from Referred Customers that have been placed as of the termination date in accordance with this Agreement; (e) each Party shall return or destroy the Confidential Information of the other Party in accordance with this Agreement; (f) Partner shall pay LegalZoom all fees then accrued and due and (g) Partner shall continue to fulfill its payment obligations to LegalZoom as set forth herein.
Upon termination or expiration of this Agreement, neither Partner nor LegalZoom shall have any further obligations under this Agreement, except for such provisions surviving the termination of this Agreement.
c. Payment obligations. For clarity, the obligations for any amounts owed to LegalZoom by Partner shall survive termination of this Agreement for any reason. Following the termination of this Agreement, Partner shall continue to pay LegalZoom for all payment obligations hereunder including, but not limited to, Referral Fees in the normal course as set forth in this Agreement until the Referral Fees and all other payment obligations of Partner pursuant to the terms of this Agreement have been fully paid including interest, if applicable. Partner shall not be obligated to pay LegalZoom a Referral Fee for any Referred Customers that LegalZoom may send to Partner after the termination or expiration of this Agreement.
8. PAYMENT. Payment of amounts (either from LegalZoom to Partner or from Partner to LegalZoom) shall be in the amounts set forth on the SBRA.
a. Late Fees. All amounts owed by Partner to LegalZoom hereunder that are not timely paid according to the terms of this Agreement shall bear interest at a rate equal to the lesser of 1.5% per month (18% 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). In addition, Partner shall reimburse LegalZoom for all costs LegalZoom incurs to collect past due amounts, including, without limitation, reasonable attorneys’ and accountants’ fees and court costs.
b. 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 Referred Customers; programming costs; and creating, producing or revising Ad Content. 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.
9. LEGALZOOM PII.
a. LegalZoom PII General Requirements. During the Term, Partner agrees to: (i) not receive, access, or use LZ PII in violation of applicable law; (ii) use, disclose, or access LZ PII solely and exclusively for the purposes that the LZ PII is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available LZ PII for the benefit of anyone other than Partner or LegalZoom, in each case, without LegalZoom's prior written consent; (iii) cause all employees to abide strictly by Partner's obligations under this Agreement and maintain a disciplinary process to address any unauthorized access, use, or disclosure of LZ PII by any of Partner's employees; (iv) provide written notification to LegalZoom in the event that Partner determines that it is no longer capable of fulfilling its obligations towards the protection and use of LZ PII as set forth in this Agreement; and (v) immediately stop and remediate any unauthorized operation on LZ PII, including but not limited to the processing, use, storage, or deletion of LZ PII.
b. LZ PII Security Requirements. Partner shall implement administrative, physical, and technical safeguards to protect LZ PII from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage that are no less rigorous than current standards of care and diligence exhibited by leading online professional services retailers, and shall ensure that all such safeguards, including the manner in which LZ PII is created, collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with Laws, as well as the terms and conditions of this Agreement. At a minimum, Partner's safeguards for the protection of LZ PII shall include: (i) limiting access of LZ PII to individuals specifically authorized by Partner for access to such information and with a legitimate business need for same; (ii) securing business facilities, data centers, paper files, servers, backup systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (iii) implementing network, application, database, and platform security; (iv) securing information transmission, storage, and disposal; (v) implementing authentication and access controls within media, applications, operating systems, and equipment; (vi) encrypting LZ PII stored on any media; (vii) encrypting LZ PII transmitted over public or wireless networks; (viii) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at Partner’s sole cost and expense, a corrective action plan to correct any issues that are reported as a result of the testing; (ix) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (x) providing appropriate privacy and information security training to Partner’s employees. LegalZoom reserves its right to update or modify its requirements with respect to Information Security from time to time.
a. Security Breach. Partner shall: (i) provide LegalZoom with the name and contact information for a point of contact of Partner who shall serve as LegalZoom's primary security contact and shall be available to assist LegalZoom twenty-four (24) hours per day, seven (7) days per week as a contact in resolving obligations associated with a Security Breach; (ii) notify LegalZoom of a Security Breach as soon as practicable, but no later than twenty-four (24) hours after Partner becomes aware of it; and (iii) notify LegalZoom of any Security Breaches by emailing LegalZoom at email@example.com and firstname.lastname@example.org, with a copy by email to Partner's primary business contact within LegalZoom. Immediately following Partner’s notification to LegalZoom of a Security Breach, the parties shall coordinate with each other to investigate the Security Breach. Partner agrees to fully cooperate with LegalZoom in LegalZoom’s handling of the matter, including, without limitation: (i) assisting with any investigation; (ii) providing LegalZoom with physical access to the facilities and operations affected; (iii) facilitating interviews with Partner's employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable Law, regulation, industry standards, or as otherwise required by LegalZoom.
b. Security Assessment. To confirm Partner’s compliance with its information security obligations hereunder, as well as any applicable laws, regulations, and industry standards, Partner grants LegalZoom or, upon LegalZoom’s election, a third party on LegalZoom's behalf, permission to perform an assessment, audit, examination, or review of all controls in Partner’s physical and/or technical environment in relation to all LZ PII being handled and/or services being provided to LegalZoom pursuant to this Agreement. Partner shall fully cooperate with such assessment by providing access to knowledgeable personnel, physical premises, documentation, infrastructure, and application software that processes, stores, or transports LZ PII for LegalZoom pursuant to this Agreement. In addition, upon LegalZoom's request, Partner shall provide LegalZoom with the results of any audit by or on behalf of Partner performed that assesses the effectiveness of Partner's information security program as relevant to the security and confidentiality of LZ PII shared during the course of this Agreement. This Section 3.8 shall survive the termination or expiration of this Agreement.
11. CONFIDENTIAL INFORMATION.
a. Confidential Information Definition. “Confidential Information” shall include all business information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plans, and equipment), and designated as being confidential or which, under the circumstances surrounding disclosure, ought to be considered confidential by the Receiving Party. Confidential Information includes, without limitation, information in tangible or intangible form, including notes made by the Receiving Party relating to and/or including the Disclosing Party’s released or unreleased services or products; marketing plans and strategies; business processes, policies or practices; individual or aggregated customer information; the terms of this Agreement; Customer Information; 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 information received from others that Disclosing Party is obligated to treat as confidential. Confidential Information may have been disclosed before, on, or after the Effective Date of this Agreement. In the case of LegalZoom, the terms “Disclosing Party” and “Receiving Party” also includes all business entities controlled by, controlling, or under common control with LegalZoom.
b. Exceptions to Confidential Information. Confidential Information shall not include any information which: (i) was publicly known and made generally available to the public prior to the time of disclosure by the Disclosing Party; (ii) 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; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (v) 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; or (vi) is required to be disclosed by the Receiving Party by law, a court of competent jurisdiction, regulatory body, governmental authority, or exchange having jurisdiction over a party’s securities, provided that immediately upon receiving any such request and to the extent that it may legally do so, the Receiving Party promptly notifies the Disclosing Party in writing of such requirement to enable the Disclosing Party to seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. To the extent that the Receiving Party must disclose Confidential Information pursuant to this subpart (vi), any such disclosure shall be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court, regulatory body, governmental authority, or exchange.
c. Standards, Use, and Disclosure. The Receiving Party agrees that it shall take commercially reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information, which shall in any event, be no less than the care the Receiving Party’s takes to protect its own Confidential Information. The Receiving Party agrees not to use any Confidential Information for any purpose except to the extent necessary to perform its obligations under this Agreement. The Receiving Party shall not disclose any Confidential Information to third parties except as explicitly permitted herein. The Receiving Party shall only disclose Confidential Information to its employees, subcontractors, and agents who: (a) have a need to know in order for the Receiving Party to fulfill its obligations hereunder or applicable law, and (b) are bound by an agreement with terms at least as stringent as those contained herein (each, a “Representative”). A party shall be responsible for any breach of the terms of this Agreement by any of its Representatives. The Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software, or other tangible objects which include Confidential Information and which are provided pursuant to this Agreement. Nothing in this Agreement is intended to grant to the Receiving Party any rights in or to the Confidential Information except as expressly set forth herein.
d. Return of Materials. 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. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by the Disclosing Party to the Receiving Party, and all copies thereof that are in the possession of the Receiving Party or its agents, shall be and remain the property of the Disclosing Party. The Receiving Party shall return to the Disclosing Party or (at the Disclosing Party’s option) destroy all of the Confidential Information in the Receiving Party’s possession or control upon termination of this Agreement or at the Disclosing Party’s written request at any other time. Upon the Disclosing Party’s written request, the Receiving Party shall provide the Disclosing Party with an affidavit (signed by an officer, or if the Receiving Party is an individual, by that individual) certifying either that all Confidential Information has been returned or destroyed.
e. Public Statement. Provider shall not make or cause to be made, any statement, public announcement, claim, or representation (including, but not limited to, marketing materials or business development presentations) of a business relationship between the parties without the express prior written consent of LegalZoom in each instance.
f. Survival of Confidentiality Obligations. Termination of this Agreement shall not relieve the parties of obligations imposed by this Section. The obligations of the Receiving Party hereunder shall survive until the earlier of: (i) such time as all Confidential Information is publicly known and is made generally available through no action or inaction of the Receiving Party or its agents; or (ii) the third (3rd) anniversary of the termination of the Agreement. Notwithstanding the foregoing, to the extent that a Disclosing Party has disclosed information that is considered a trade secret, the Receiving Party agrees to protect such trade secret(s) for so long as the information qualifies as a trade secret under applicable law.
g. Equitable Relief. 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, LegalZoom may enforce its rights under this Section by equitable means, including, but not limited to, injunctive relief, in addition to any other remedies to which it is otherwise entitled.
12. REPRESENTATIONS AND WARRANTIES.
a. General. Partner represents and warrants to LegalZoom that as of the Effective Date and for the duration of the Term:
i. Partner is duly organized and validly existing under the laws of the state in which it is organized and in which it conducts business.
ii. Partner has the full authority and corporate power to enter into this Agreement and to perform its obligations hereunder.
iii. 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 Partner or its property, or violate any provision of any law, statute, rule, regulation, or order, writ judgment, injunction or decree applicable to Partner or its property.
iv. This Agreement represents a valid obligation of Partner and is fully enforceable against Partner according to its terms.
vi. Partner shall perform its obligations under this Agreement and provide Partner Products in a highly professional manner consistent with high industry standards and practices.
vii. Partner shall provide Partner Products and 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.
viii. Partner or its officers or directors are not a party to any pending litigation which could adversely affect Partner’s obligations hereunder.
ix. Partner Website, Ad Content and Partner Products 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.
x. Neither the Ad Content nor the Partner Articles shall violate any third party intellectual property rights.
b. Security Related. LegalZoom has certain obligations to protect personal information in the possession of or accessible by LegalZoom and its business partners. Pursuant to such obligations and as an essential part of this Agreement, Partner represents and warrants that as of the Effective Date until the end of Term or the period of time Partner has access to such personal information (whichever is later), that Partner maintains a comprehensive information security program (“Data Security Plan”) that is appropriate for Partner, taking into consideration the following factors: size, scope, and type of Partner’s business; resources available to Partner; the amount and type of personal information in Partner’s possession or care; Partner’s need for security and confidentiality of personal information in its possession or care; and all applicable laws. Without limiting the foregoing, the Data Security Plan, at minimum, shall:
i. Maintain and regularly monitor systems to ensure such plan effectively prevents unauthorized access to customers’, employees’ and others’ personal information with the proper level of security, confidentiality, and integrity in all forms of media and data storage including, without limitation, electronic, paper, or other media (“Records”);
ii. Restrict physical and electronic access to Records, including the prevention of access to terminated employees; impose disciplinary measures for violation of the Data Security Plan; and document any responsive actions taken to a breach of the Data Security Plan;
iii. Designate an employee to identify foreseeable risks in the Data Security Plan; and
iv. Require Partner to review the scope of the Data Security Plan whenever there is a material change in the business practices of Partner, but in any event, no less than annually.
13. DUTY TO COMMUNICATE.
a. Forwarding Requests for Information. If LegalZoom receives any request for information, advice, or service regarding Partner, LegalZoom agrees to forward such request to Partner, through Partner Website or otherwise. Neither LegalZoom, its Affiliates nor any of each of their respective officers, directors, employees, agents, or representatives of shall be obligated to represent, describe, explain or sell Partner Products to any person or entity.
b. 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.
14. INSURANCE. Partner 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, Partner shall procure and maintain, during the term of this Agreement and for a period of one (1) year after, the following: (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, and if no statutory requirement exists, a deductible no greater than $5,000. If requested by LegalZoom in writing, Partner agrees to name LegalZoom.com, Inc. as an additional insured on its applicable insurance policies. Within seven (7) calendar days of LegalZoom’s request, Partner shall deliver to LegalZoom certificates of insurance evidencing the requirements in this section. Such certificates shall contain a provision that coverage will not be materially changed, cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to LegalZoom.
a. Indemnity by Partner. Partner (“Partner Indemnifying Party”) shall indemnify, defend, and hold harmless LegalZoom, its Affiliates, and each of their respective officers, directors, agents, servants, employees, divisions, subsidiaries, shareholders, partners, and members (collectively, “LZ Indemnified Parties”) from and against any and all action, cause of action, suit, claim, demand, subpoena, settlement, judgment, controversy, loss, obligation, damage, cost, lien, fine, penalty, charge, court cost, payment, loss, liability and expense including, without limitation, reasonable attorneys’ and expert witness fees, litigation fees, and investigation costs through all appeals that may be asserted against, imposed upon, or suffered by any of the LZ Indemnified Parties, or that may be claimed by any person as a result of, arising out of or related to: (i) Partner’s business, (ii) Partner Products; (iii) 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; (iv) the violation by Partner of Partner’s policies, procedures and regulations; (v) the breach of any of the representations, warranties, or obligations made by Partner in this Agreement; (vi) any allegations or claims that the Ad Content, Articles, Partner Products, or Partner Marks infringe upon the intellectual property rights of a third party; and/or (vii) the failure of Partner to perform its obligations under this Agreement (“LZ Claim”).
b. Indemnity by LegalZoom. LegalZoom (“LZ 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, loss, liability and expense including, without limitation, reasonable attorneys’ and expert witness fees, litigation fees, and investigation costs through all appeals that may be asserted against, imposed upon, or suffered by any of the Partner Indemnified Parties, or that may be claimed by any person as a result of, arising out of or related to: any allegations or claims that the LegalZoom Marks infringe upon the intellectual property rights of a third party (“Partner Claim”).
c. Indemnification Process. 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 provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such Claim.
The Indemnified Party/ies shall permit the Indemnifying Party/ies (at the Indemnifying Party/ies’ expense) to assume the defense of any Claim(s), provided that counsel for the Indemnified Party/ies, who shall conduct the defense, shall be reasonably satisfactory to each Indemnified Party, and each Indemnified Party may participate in the defense at such Indemnified Party’s expense. If the Indemnifying Party/ies does not promptly assume the defense of a Claim, each Indemnified Party shall be entitled to assume and control such defense and to settle or agree to pay in full such Claim without the consent of the Indemnifying Party/ies without prejudice to the ability of the Indemnified Party to enforce its claim for indemnification from the Indemnifying Party/ies hereunder. Except with the prior written consent of each Indemnified Party, the Indemnifying Party/ies may not, in the defense of any Claim, consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting any Indemnified Party or that does not include as an unconditional term thereof, an irrevocable release from all liability with respect to such Claim given by each claimant or plaintiff to each Indemnified Party. If an Indemnified Party, in good faith, determines that the conduct of the defense or any proposed settlement of any Claim would reasonably be expected to adversely affect the Indemnified Party’s tax liability or ability to conduct its business, or that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party/ies in respect of such Claim, the Indemnified Party shall have the right at all times to take over and control the defense, settlement, negotiation, or litigation relating to any such Claim at the sole cost of the Indemnifying Party/ies, provided that if an Indemnified Party does so take over and control, the Indemnified Party shall not settle such Claim without the written consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. In any event, Partner and LegalZoom shall cooperate in the defense of any Claim subject to this Section and the records of each shall be made reasonably available to the other to the extent related to or necessary for such defense.
16. LIMITATION OF LIABILITY. IN NO EVENT SHALL LEGALZOOM, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AND/OR AGENTS (“LZ RELATED PARTIES”) BE LIABLE TO PARTNER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, TOLL FRAUD, LOSS OF USE, AND 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 LZ RELATED PARTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED AMOUNTS ACTUALLY PAID BY PARTNER TO LEGALZOOM DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM FOR DAMAGES UNDER THIS AGREEMENT.
17. WARRANTY DISCLAIMER. 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 SBR 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, THAT MAY BE OBTAINED BY PARTICIPATION IN THE SBR 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, INCLUDING, BUT NOT LIMITED TO PARTNER PRODUCTS. FURTHER, NOTHING HEREIN SHALL BE DEEMED TO BE AN APPROVAL, ENDORSEMENT OR RECOMMENDATION OF PARTNER OR PARTNER PRODUCTS BY LEGALZOOM. LegalZoom shall not be responsible or liable for the performance, payment obligation, liability, fraud or breach by any customer of Partner including, but not limited to, Referred Customers. All losses incurred by Partner attributable to its customers, including but not limited to fraud, chargebacks and non-payment of fees, will be borne by Partner.
18. NO EXCLUSIVITY. Partner and LegalZoom expressly agree that the parties do not intend, nor will Partner allege, that this Agreement is or is intended to (now or in the future) 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 shall not provide, guarantee or make any representation regarding the volume of impressions, click delivery, referrals, sales, traffic, or any other result in connection with this Agreement.
19. RELATIONSHIP OF THE PARTIES. 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. For clarity, there is no agency authority hereunder.
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.
a. Records and Audit. Partner shall maintain true and complete records of all accounting documents and procedures related to the payment obligations to LegalZoom hereunder including, but not limited to, Monthly Reports. Partner shall retain all such records during the Record Retention Period. The “Record Retention Period” shall mean during the Term and for at least twenty-four (24) months (or such longer period of time as may be required by law) after the end of the calendar year in which the Term ends. Partner shall provide LegalZoom, upon reasonable request, an opportunity to audit such records along with other available documentation to substantiate the payments made to LegalZoom hereunder. In the event that any such audit shall reveal an underpayment by Partner to LegalZoom, Partner shall remedy such underpayment and the cause for such underpayment immediately plus interest at the rate maximum allowable by law per annum. In the event any such audit shall reveal an underpayment by Partner to LegalZoom of greater than five percent (5%) for any particular month, Partner shall also reimburse LegalZoom for the costs and expenses of such audit. This Section shall survive the termination or expiration of this Agreement.
b. Governing Law and Arbitration. Any dispute arising out of or relating to this 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, unless the amount in controversy is under $500,000, and in which case, JAMS Streamlined Arbitration Rules and Procedures shall apply, which are incorporated herein by reference. Commencement of an arbitration under this Agreement may be accomplished by service of the required “Demand for Arbitration Before JAMS” in accordance with the Notice Requirements of this Agreement.
In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of this Agreement, and shall be required to follow applicable federal and state 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 this 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 Cal. 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.
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.
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.
The parties, each of which represent and warrant that they have been afforded the right to consult with and have consulted with an attorney of their choosing regarding this 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 those claims.
c. Attorneys’ Fees. Should any party hereto institute any action or proceeding, including in any bankruptcy proceeding, to enforce or seek an interpretation of any provision hereof or for damages by reason of an alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover from the losing party or parties its reasonable attorneys' fees and expenses, including, without limitation, the costs of services of paralegals, legal assistants, legal secretaries and expert witnesses, and costs of litigation, investigation and appeal incurred by the prevailing party in such action or proceeding. The prevailing party shall remain entitled to recover the above attorneys' fees in the event the losing party or parties should become the subject of an order for relief under Title 11 of the United States Bankruptcy Code, or any successor statute or any other applicable statute.
d. Assignment. Partner shall not assign or transfer, in whole or in part, any of its rights or obligations under this Agreement, voluntarily or by operation of law, except with the prior written consent of LegalZoom, which may be granted or withheld in LegalZoom’s sole and absolute discretion, and any attempt to do so without such consent shall be void. Partner shall, at all times, remain fully responsible and liable for the performance of Partner’s obligations herein, regardless if any portion or component of the Services are performed by a permitted assignee or transferee. LegalZoom may assign or otherwise transfer any of its rights or obligations under this Agreement without Partner’s consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and each party’s permitted successors and assigns.
e. Modification and Waiver. Except as set forth in the SBRA, this Agreement may not be modified in any manner except in a written instrument executed by both parties. 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: (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 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.
f. 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 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 no event shall failure to pay be considered a 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.
g. 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.
h. Headings and References. The section headings in this Agreement have been inserted as a matter of convenience and for reference only, and are not intended nor should they be construed to convey any substantive content in the interpretation of this Agreement.
i. No Presumption Against Drafter. Each of the parties hereto has jointly participated in the negotiation and drafting of this Agreement. In the event of an ambiguity or if a question of intent or interpretation arises, this 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 this Agreement.
j. 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 after being sent by overnight delivery via Federal Express (or comparable overnight delivery service with tracking), all fees prepaid, or (b) on the third day after being mailed by United States certified or registered mail, postage prepaid (or comparable delivery service). A party may update its notice address in accordance with this Section. The initial notice addresses for the parties are as follows:
If to LegalZoom: LegalZoom.com, Inc. ATTN: General Counsel, 101 N. Brand Blvd.,11th Floor, Glendale, CA 91203
With a copy to: LegalZoom’ Contact information set forth in the SBRA.
If to Partner: Partner’s Notice Address in the SBRA (if specified); otherwise Partner’s Contact information set forth in the SBRA.
k. Survival. All provisions of this Agreement which, by their nature, should apply beyond its term will remain in force after any termination or expiration of this Agreement.
l. 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.
m. No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, nothing in this Agreement is intended to confer upon any person or entity 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 this Agreement.
Last Modified: April 6, 2021