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IMPORTANT DISCLAIMERS AND RESTRICTIONS
TERMS AND CONDITIONS
Physical Location of Main Office:
Robert K. Rainer, PC is a law firm with lawyers licensed to practice law in Massachusetts. Our headquarters is located at;
500 Beach Street, Revere, Massachusetts 02151
Phone Number: (781) 289-7900
Fax Number: (800) 722.7125
Customer Service Email: help_rainerlaw.com.
Lawyers.TM is a wholy owned subsidiary of I.M Solutions, LLC [IMS], Terms and Conditions are as follows:
Group Marketing, License and Service Agreement
THIS GROUP MARKETING, LICENSE AND SERVICE AGREEMENT (this Agreement) by and between IM Solutions LLC d/b/a Internet Marketing Solutions with offices located at 500 University Ave. DH Tower, Suite 926 Honolulu, HI 96826 (IMS or Licensor), and client (Licensee) (defined on the accompanying Sales Order by name and address, is dated and made effective as of the latest date (the Effective Date) on which this Agreement is 1) physically signed, in the event a hard copy (or fax copy) of this Agreement is executed by the parties,, or 2) on the date on which Licensee agrees to accept virtually the terms and conditions by clicking the I Accept box (or entering a credit card number, referred to as clicking-to-accept) on an IMS owned, licensed, leased, operated or controlled website (collectively, IMS Websites). Such clicking-to-accept, or any inserting of a credit card number and subsequent use of the systems or Services shall collectively be referred to herein as the Agreement being Electronically Signed, and Accepted, by Licensee and shall constitute a valid and legally binding Electronic Signature to this Agreement by Licensee and Licensor. Regardless of whether this Agreement is Electronically Signed by Licensee, in accordance with the foregoing, or otherwise physically signed by the Licensee and Licensor, such use and/ or signature(s) shall collectively constitute Acceptance by the parties of all terms, conditions, pricing and payment obligations contained in this Agreement and its attachments. In cases where a user becomes a Licensee via Electronic Signature, or use, the parties agree that this Agreement shall automatically be deemed signed and Accepted by each party, with IMS as the Licensor and the person, persons or entity issuing the Electronic Signature as the Licensee. Unless otherwise specified by Licensee at the time of clicking-to-accept, or otherwise using or accessing the system, the Initial Term (defined in Section 2, below) shall be on a month-to-month basis, and the applicable Fees shall apply.
This Agreement, together with any pricing and/or other Sales Orders, Appendices or attachments hereto, which may also be Electronically Signed or physically signed in accordance with the previous paragraph, (each of which is incorporated herein by this reference), sets forth the terms and conditions upon which IMS will license and/or sublicense use of the IMS Websites and certain software, as well as provide certain marketing, call center and other ancillary services, to you, the Licensee as part of an IMS group marketing Services effort. Acceptance of this Agreement, indicates that you, as Licensee: (x) accept this Agreement and agree to be bound by each of its terms, conditions and the respective pricing and Fees for Services, and (y) represent and warrant to IMS that: (i) you have the authority to enter into this Agreement either individually on your own behalf or, in the event you are Accepting for a corporate or business entity, you have contracting authority on behalf of your business or entity sufficient to legally bind the business or entity, (ii) this Agreement is binding and enforceable against you and, if applicable (as the case may be), your business entity or firm, and (iii) you have read and understand IMS Privacy Policy which is posted at www.imsolutionsllc.us ("the IMS Company Website"), the terms of which are hereby incorporated by reference, and you agree to the terms of such policy for the duration of the Term of this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SYSTEM OR USING ANY SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR ANYTHING CONTAINED IN THIS AGREEMENT, DO NOT USE ANY SERVICES.
RECITALS
A. IMS is a marketing corporation engaged in the business of marketing, consulting, designing and coordinating individual and / or group marketing campaigns to individuals, partnerships, corporations and other enterprises, including without limitation law firms and other businesses. Such services (Services), as further described in Section 3, below and elsewhere herein, are cooperative marketing efforts between IMS and such its client entities. The IMS Websites serve as a vehicle for such client entities to promote and market their businesses and their respective services.
B. In addition to serving as a marketing resource to various entities, IMS also offers additional ancillary services to these entities, including, without limitation, access to its Customer Management System (CMS) software and database.
C. Licensee, as an individual client or a part of a group, is seeking to utilize IMS marketing Services (collectively, the Group), and wishes, subject to the terms and conditions of this Agreement, to license the use of the IMS Websites throughout the United States, to market its services offerings as described herein and hereby wishes to engage IMS to provide such marketing Services on these terms and for these Fees.
TERMS
In consideration of the covenants and agreements contained herein, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:
1.Incorporation of Recitals: The recitals and prefatory paragraph set forth above are incorporated in full into this Agreement.
2.Term: As of the Effective Date, the term of this Agreement will be for the Initial Term as set forth in the Sales Order, (i.e., either on a month-to-month basis, or on an annual basis, as selected by Licensee), beginning on the Effective Date as stated on the Sales Order and running for the term specified therein. During the Initial Term, Licensee may terminate this Agreement at any time, for any reason, by sending written notice to IMS as set forth in Section 26 (Notices) of this Agreement. In the event of a termination during the Initial Term, Licensee shall only be required to pay Fees for actual services received through the scheduled end of the Initial Term. Unless this Agreement has been terminated as set forth above, this Agreement shall automatically renew and remain effective on a month to calendar month basis (each, a Renewal Term) and shall be terminable by either party according to the termination terms on the Sales Order, or if not otherwise specified on the Sales Order then it shall be terminable by either party at any time by providing at least ninety (90) days written notice to the other party (collectively, the Initial Term and each Renewal Term, are the Term). In the event that a termination notice is delivered during any Renewal Term, such termination shall be effective according to the termination terms on the Sales Order, or if not otherwise specified on the Sales Order then it shall be terminable ninety (90) days from such notice. Each Renewal Term shall be deemed to start as of the first day of a calendar month and end on the last day of a calendar month.
3.Services. In consideration for Licensee paying to IMS the Fees described in Section 7 of this Agreement, IMS shall license to Licensee use of the IMS Websites to market its practice and/or services as described in this Agreement, and shall otherwise assist Licensee in its marketing efforts as described below (collectively, the Services):
(a)Marketing Services. In connection with the IMS Websites, IMS shall provide internet marketing services to the Group generally and to the Licensee specifically (collectively, the Marketing Services), including (1) the design of an internet marketing campaign strategy, (2) the creation and/or updating of internet advertisements, web sites, and other similar web-based promotional material, (3) the ad-buys of the marketing campaign, and (4) related services necessary to implement and coordinate same. IMS shall have the sole and absolute discretion to make any decisions regarding how it performs these tasks, including how much time and money to allocate for each respective task.
(b) CMS. In addition to the Marketing Services, to assist Licensee in tracking and managing new business generated by the collective marketing efforts undertaken hereunder, IMS hereby licenses to Licensee during the Term, on a limited and non-exclusive basis for its internal use only (and not for resale, modification or sublicense), the use of IMS software commonly known as the Customer Management System (the CMS). Each Response (as defined below) will result in a client record being created in the CMS. Specifically, through an extranet, IMS will offer interfaces for Licensee to view Response information, e-mail interfaces to promote more efficient communication with Responses, and various capabilities to assist Licensee in managing Response records. IMS shall perform all function required for initial data entry requirements in respect of the CMS database.
(c)Response Delivery Services. In addition to the Marketing Services and CMS, to assist Licensee in managing new business generated by the collective marketing efforts undertaken hereunder, IMS provides the following optional services, which Licensee may elect to have provided by IMS at no additional cost to Licensee:
i.Use of auto-response e-mail features.
ii.Real-time display of Response information via CMS
iii.Real-time e-mail and mobile delivery of Response information
(d)Call Center Services. In addition to the Marketing Services, CMS, and Response Delivery Services, IMS may assist Licensee, upon Licensees written request, by providing referral information and in the setup and use of third-party Call Center Services ("Call Center") to Licensee. For purposes of this Agreement, Call Center Services shall mean answering services and client services by a professional service provider ("Call Center"), engaged by IMS or by IMS itself, in IMS sole discretion. Any fees payable for Call Center Services are not presently included in the Fees described in Section 7 of this Agreement, and any additional fees for such services shall be specified in Appendix 1. The decision to utilize Call Center Services shall be solely the decision of the Licensee, and Licensee accepts full responsibility and liability for such decision.
4.Responses: Members of the Group may, from time to time and subject to the sole and absolute discretion of IMS and, in certain instances, receive inquiries regarding Licensees services offerings, including requests for direction to clients providing legal advice and/or representation from potential clients, the potential Response, (sometimes referred to as Responses), in their assigned territory (collectively, Licensees Territory or Geographic Territory). IMS shall provide Licensee with the applicable subject matter, geographic and / or agreed quantity of Responses, based on the terms of Licensees selections set forth in the Sales Order. Such Responses shall be provided in accordance with and subject to the following:
a)Licensee, during the Term, will be allowed to view and act upon, in its discretion, Response records solely in the Practice Area and associated Geographic Territory as specified in the Sales Order.
b)The Licensee may not change the Practice Area(s) and Geographic Territory during the Term of this Agreement unless IMS authorizes the change in advance, in writing or by electronic mail.
c)IMS reserves the right to provide Services to more than one Licensee for any area of practice and geographic territory and to allocate Responses based upon its sole direction.
d)IMS shall refrain from forwarding the same Response records to multiple Licensees for the same practice area within the same geography.
5.Licensee Information: At the beginning of the Initial Term, or otherwise upon the request of IMS, Licensee shall provide to IMS in a timely manner, Licensees contact information, which IMS will incorporate in its marketing efforts. If Licensees contact information changes at any time during the Term, Licensee shall, no later than five (5) business days prior to such change, submit Licensees new contact information to IMS in accordance with Section 26 (Notices) of this Agreement. Unless otherwise agreed, at the time of execution of this Agreement, Licensee will provide to IMS a valid credit card / debit card (the Credit Card of Record), which shall be specified on the Sales Order. IMS is hereby authorized to charge all Fees described in this Agreement, and Licensee agrees to pay all such Fees. In the event IMS attempts to charge Fees against the Credit Card of Record and such charges or Fees are rejected if full or in part, Licensee agrees to immediately arrange for an electronic funds, transfer or otherwise provide an alternate valid credit card or debit card to make payment of such Fees within forty-eight (48) hours. Failure to make payment in accordance with the foregoing shall be considered a material breach of this Agreement and shall entitle IMS to withhold further Services and pursue all available remedies at law or in equity.
6.Account Deposit: Licensee shall pay to IMS a deposit ("Deposit"). This Deposit shall be held on account until termination or expiration of this Agreement. Upon termination or expiration of this Agreement, any unpaid balances due from Licensee shall be deducted from the Deposit and any remaining amounts of the Deposit shall be returned to Licensee within 30 days of termination or expiration of this Agreement.
7.Fees: In consideration for providing the Services to Licensee hereunder, Licensee shall pay to IMS the following fees:
(a)Application Fee.The Application Fee is, as specified on the Sales Order, one-time only and non-refundable, unless IMS does not execute this Agreement within 30 days after the date Licensee delivers it to IMS fully executed by Licensee; in such event, IMS shall refund the Application Fee. You agree in advance that IMS shall charge the Credit Card of Record for the full amount of the Application Fee.
(b)Marketing Fees. Subject to adjustments as set forth in clause (i) and clause (iii) below, Licensee shall pay IMS a monthly marketing Fee as specified in the Sales Order (the Marketing Fee).
(i)Responses / Response Goal.
(1) Defined. In order for IMS to earn its full base Marketing Fee, IMS must provide the minimum level of Responses specified in Appendix 1 (the Response Goal). IMS performance shall be measured by using the Responses Goal as specified in Appendix 1, which IMS must quantitatively meet in order to be paid its full base Marketing Fee which shall be met by individuals accessing IMS website, creating a Response, and connecting to Licensees website.
(2) Adjustments.
a) Discount: In the event that IMS quantitatively under-performs on the Appendix 1 Response Goal, then it will provide a pro rata discount equal to the Marketing Fee multiplied by the actual percentage by which the Response Goal was missed. The Example Chart 1 below is provided for purposes of illustration only. If the number of Responses established as the Appendix 1 requirement under the Responses Goal is thirty (30) and IMS only delivers fifteen (15) Responses, then Licensee shall be entitled to a fifty percent (50%) discount on the Marketing Fees because it did not achieve the Appendix 1 Response Goal. Such failures shall not constitute a breach of this Agreement, and this discount shall be Licensees sole and exclusive remedy for such under-performance. For purposes of this example, the calculation would be as follows in Example Chart 1:
Example Chart 1
15 Responses30 Responses.50 (50% underperformance)$750$375
(Actual Responses)Divided by (Responses Goal Requirement)Equals (Percentage of Goal Requirement Met)Multiplied By (Marketing Fee)Equals (Discounted/Adjusted Marketing Fee)
b) Additional Charge. If the Appendix 1 Response Goal is exceeded in a given Term, Licensee shall be obligated to pay, in addition to the base Marketing Fee, an additional amount consisting of the Marketing Fee multiplied by the actual percentage by which the Responses Goal was exceeded. Again, for purposes of illustration only, Example Chart 2 illustrates the situation when the number of Responses established under the Responses Goal is thirty (30) and IMS delivers forty-five (45) Responses, then IMS shall be entitled to a 50% additional charge on the Marketing Fees because it over-performed on the Responses Goal. For purposes of this example, the Example Chart 2 calculation would be as follows:
Example Chart 2
45 Responses30 Responses1.50 (50% over-performance)$750$1125
(Actual Responses)Divided by (Responses Goal Requirement)Equals (Percentage of Response Goal Requirement Met)Multiplied By (base Marketing Fee)Equals (Additional/Adjusted Marketing Fee)
(ii)Definition of Responses. For purposes of this Agreement, Response shall mean, as required by context, either (1) an instance where a member of the public fills out an on-line form or otherwise requests additional information about the Licensees business (or law practice, as the case may be) as a result of IMS marketing efforts, including those of IMS affiliates, partners, etc., or (2) a member of the public contacts IMS through its call center and requests an evaluation of the services offered by Licensee or otherwise requests additional information about the Licensees business offerings.
(iii)Invalid Response. Each Response shall be available for Licensees review on the CMS. The Licensee will have the capability to in good faith mark a Response as a potential "Dispute" for a period of five (5) business days after submission of the Response on the CMS system. Each Response shall be deemed to be final and accepted by both parties unless Licensee, within such five (5) business day period following its receipt of the Response, identifies by use of the CMS to IMS one or more Valid Disputes (as defined below). For purposes of this Agreement, Valid Disputes criteria shall be listed and defined in the CMS.
IMS shall make the final determination in its discretion regarding all disputed claims and whether they will be classified as Valid Disputes or as valid Responses counting towards the Response Goal(s). Valid Disputes shall be excluded from all calculations regarding Marketing Fees set forth above in this Section 7.
(iv)Flat Dispute Allowance. As an alternative to the Invalid Response Dispute process as set forth in section 7-a-iii, above, IMS shall have at its sole discretion an alternative means of determining Valid Disputes, which shall be the utilization of a flat percentage allowance (a Flat Dispute Allowance) wherein an IMS established percentage of Reponses are assumed to be Valid Disputes. When this allowance is used, then the information entered by Licensee in the CMS shall not be used by the parties for determining the count of Valid Disputes.
8.Payments: Fees shall be earned, due and payable for all Responses (except with respect to Valid Disputes, or the flat dispute allowance, as the case may be) provided to Licensee. All Fees earned by IMS during any calendar month during the Term shall be due and owing immediately as of the delivery of the invoice which is anticipated to be on or about the fifth (5th) calendar day following the end of each such calendar month. Except to the extent alternative arrangements acceptable to IMS in its sole discretion are put in place, Licensees Credit Card will be billed automatically for Fees payable. Acceptable alternatives that IMS will consider include ACH deposits and checks. Such alternate payment method approvals shall be evidenced in writing by the parties in advance. Unless and until such alternate payment methods are approved by IMS, Licensee aggress that by signing a copy of this Agreement (electronically or otherwise), Licensee hereby authorizes IMS to charge any Credit Card of Record provided by Licensee to IMS. Any adjustments to Fees for Valid Disputes will be deducted by IMS from future Fee payments. Unless and until this Agreement is terminated or expires (and Fees due and payable are paid in full) Licensee shall not, under any circumstance, (i) revoke the authorization to charge the Credit Card of Record or ACH for any Services previously rendered or to be rendered prior to termination, or (ii) contest any charges to the Credit Card of Record or ACH which are made by IMS in accordance with this Agreement. Licensee shall, as is the case with other disputes arising hereunder, be entitled to resolve any and all such disputes pursuant to Section 22 of this Agreement.
9.Warranties: IMS warrants to Licensee that all Services provided hereunder will be performed in a professional manner consistent with industry practices. NEITHER IMS NOR ANY AFFILIATE, PARENT COMPANY OR SUBSIDIARY MAKES ANY OTHER WARRANTIES OF ANY KIND REGARDING THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THE DELIVERY OF ANY RESPONSE WILL BE ERROR FREE, (C) AS TO THE RESULTS, IF ANY, THAT MAY BE OBTAINED AS A RESULT OF IMS AND/OR LICENSEES MARKETING EFFORTS, OR (D) THAT WEBSITES, INCLUDING WITHOUT LIMITATION WWW.IMSOLUTIONSLLC.US AND THE CMS, WILL BE CONTINUOUSLY AVAILABLE, ERROR FREE, OR FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL MATERIALS, (E) THAT DELIVERY OF RESPONSES VIA EMAIL AND OTHER METHODS IS ON A BEST EFFORT BASIS AND RELIABILITY IS NOT GUARANTEED, (F) FOR LOSS OF ANY DATA FOR ANY REASON INCLUDING DUE TO IMS NEGLIGENCE, (G) AND LICENSEE ACKNOWLEDGES THAT IMS IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY FAILURES IN LICENSEE WEBSITE, SOFTWARE OR OPERATIONS. Notwithstanding the foregoing, IMS shall use its commercially reasonable efforts to maintain its websites, software and systems in a virus free environment.
10.Breach of Licensees obligations: If Licensee materially breaches any of its obligations under this Agreement, including the failure to timely pay any Fees or other monies owed, IMS shall be permitted, at its sole discretion, to do any or all of the following (it being understood that such remedies are not exclusive of one another or any other remedies IMS may have at equity or law): (1) terminate this Agreement without notice, in which case Fees shall remain due and owing to IMS for all Services provided prior to the date of termination until paid in full; (2) temporarily suspend this Agreement upon one (1) hour electronic notice (it being understood that IMS shall retain the right to reinstate this Agreement at any time in its sole discretion); (3) for unpaid Fees, assess interest at the lesser of one and one-half percent (1.5%) of the amounts owed per month or the maximum amount allowed by law; (4) collect from Licensee reimbursement for all costs, including attorneys fees, incurred by IMS in collecting any Fees or other monies owed to it by Licensee, or otherwise enforcing its rights under this Agreement; and/or (5) any other remedy available under this agreement at law or in equity, including injunctive relief, as applicable.
11.Privacy: Licensee agrees not to sell, transfer, license, sub-license or otherwise disseminate any information gathered by IMS pursuant to this Agreement (including, without limitation, with respect to any Response), except to the limited extent Licensee is legally required to do so. Nothing in this Section 11 shall be construed to restrict or otherwise affect in any way Licensees relationship with any of its clients, and Licensee retains full and sole discretion in respect of decisions regarding clients, including without limitation legal advice provided to clients. In addition, Licensee agrees that it will not use any Response data for any unauthorized use including, but not limited to, chain letters, junk mail, "spamming", telephone solicitations in violation of any state or federal law or Do-Not-Call registry, or as a basis for any use or distribution lists to any person who has not given specific permission to be included in such a process. Licensee further agrees not to use Responses or any Response data to send any messages or materials that are unlawful, considered an act(s) against public policy, discrimination of any kind, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. IMS reserves the right to terminate Licensees account immediately and without notice, if it becomes aware or determines, in its sole discretion, that Licensee is violating any of the foregoing contractual restrictions. Licensee shall not use IMS name in any marketing or other materials without IMS prior written consent, which may be withheld in IMS sole discretion.
12.IMS Intellectual Property: IMS shall at all times retain sole and exclusive ownership of, and, as applicable, sole and exclusive rights as a licensee or sub-licensee of, all of its copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property rights (collectively, IP), including, without limitation, the CMS and all of the proprietary material provided and/or displayed by IMS at the IMS Website, affiliated Web sites, extranet, marketing materials or otherwise. This Agreement shall not be construed to convey, assign, sell or transfer any copyrighted, patented, trademarked or other material. Any such transfer, if at all, shall be conducted under a separate agreement signed by the parties.
13.Limited License to use IMS Services IP: IMS may provide Licensee with a limited license to use, during the Term, proprietary software, code or other similar materials, including without limitation the CMS (Services IP), including through its extranet services, solely in connection with providing, using or accessing the Services hereunder. Subject to the terms and conditions of this Agreement, and for a period limited to the Term of this Agreement, IMS grants to Licensee a world-wide, revocable, non-exclusive, non-transferable, non-sub-licensable, limited use license (or, as applicable, sub-license) to access and use the Services IP required to use and access the Services, and receive Responses, solely in connection with Licensees business and solely to the extent expressly set forth in this Agreement. Such license or sub-license shall immediately expire upon expiration of the Term or termination of this Agreement by either party for any reason.
14.Licensees Intellectual Property: Licensee represents and warrants that none of the content, materials, designs, text, names, data or other information provided by Licensee to IMS with respect to the Services or otherwise (collectively, Licensee Content) infringes the intellectual property or other proprietary rights of IMS or any third party, and IMS shall have no liability for any claims arising out of any Licensee Content, including those based on infringement. Further, Licensee grants to IMS a non-exclusive license to use the Licensee Content, as well as any other copyrights, trade names and/or trademarks of Licensee, to the extent necessary for IMS to provide the Services to Licensee and market its Services to other potential IMS clients (which includes, without limitation, (i) the right to make copies, create illustrations, display personal and/or corporate name(s), and display other pictures and materials, and (ii) for purposes of promoting IMS to the public and other potential customers). Such Content shall not be considered confidential information under this Agreement for purposes of this Section. Such license shall include the right of IMS employees, agents and contractors to view Licensee Content for administrative purposes.
15.Confidentiality: IMS and Licensee each agree to treat as confidential all confidential information of the other party, not to use such confidential information except as set forth herein and not to disclose such confidential information to any third party except as may be reasonably required or permitted pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party under this Agreement, provided, however, that in no event shall such degree of care be less than reasonable care in light of general industry practice. Notwithstanding the foregoing, neither party hereto shall have liability to the other with regard to any confidential information of the other which: (i) was in the public domain at the time it was disclosed or enters the public domain through no fault of the receiver; (ii) was known to the receiver, without restriction, at the time of disclosure as shown by the files of the receiver in existence at the time of disclosure; (iii) is disclosed with the prior, written approval of the discloser; (iv) was independently developed by the receiver without any use of such confidential information; (v) becomes known to the receiver, without restriction, from a source other than the discloser, without breach of this Agreement by receiver; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, provided, however, that the receiver shall provide prompt notice thereof to enable the discloser to seek a protective order to otherwise prevent such disclosure.
16.Duties Regarding Responses: Licensee agrees that it will charge its normal and customary fees to clients retained through Responses to IMS Services, and Licensee will not increase its fees (directly or indirectly) for such clients due to or as a result of such Services. Further, in addition to all other duties Licensee owes to Responses as actual and/or potential clients, Licensee agrees that it will act in a timely manner in deciding whether to accept or decline representation of each Response in accordance with its ethical obligations, to those Responses it is not willing or able to represent. Licensee hereby agrees and acknowledges that IMS is in no way acting as legal counsel or co-legal counsel or providing any legal advice with respect to any Response or any of Licensees clients, or how Licensee deals with its clients.
17.Licensees Indemnification Obligations: Licensee agrees to defend, indemnify, and hold harmless IMS and, where applicable, its past and present shareholders, members, parent companies, partners, licensees, consultants, affiliates, contractors, subsidiaries, successors, predecessors, assigns, officers, directors, managers, employees, attorneys, agents, and all third parties working with IMS in connection with any of the Services, from and against any and all losses, claims, controversies, causes of action, demands, torts, damages, costs, attorneys' fees and liabilities of any kind actually or allegedly related to or arising out of:
a.Any breach of this Agreement, including any breach of its representations or warranties set forth herein;
b.Any professional malpractice or other breach of duty in the course of its communications with Responses, including without limitation the legal representation of clients in any matter, if applicable;
c.Any and all damages or losses arising from claims by third parties that any Licensee content, information or other resources or items (or the access or other rights thereto) provided by Licensee to IMS as of the Effective Date, or during the Term, pursuant to this Agreement (i) infringes a copyright held by that third party, (ii) infringes that third partys patent or (iii) constitutes misappropriation or unlawful disclosure or use of a third partys trade secrets, or other intellectual property rights.
18.IMS Indemnification Obligations: During the Term, IMS agrees to indemnify, and hold harmless Licensee from and against any and all losses, claims, controversies, causes of action, demands, torts, damages, costs, attorneys' fees and liabilities of any kind actually or allegedly related to or arising out of:
a.Any breach of Confidentiality;
b.Losses arising from claims by third parties that any IMS Services IP, used by IMS in providing Services pursuant to this Agreement (i) infringes a copyright held by that third party, (ii) infringes that third partys presently existing U.S. patent in place as of the Effective Date or (iii) constitutes misappropriation or unlawful disclosure or use of a third partys trade secrets.
19.Limitations of Liability: IMS shall not be held liable for any special, indirect, incidental or consequential, exemplary or punitive damages arising out of the Services or otherwise arising out of this Agreement, regardless of whether a claim is based on contract, tort, strict liability or otherwise, or whether caused by IMS, its affiliates, agents, employees, subsidiaries, representatives, assigns, or otherwise. In addition, IMS total liability hereunder shall not exceed the aggregate Fees paid to IMS during the six (6) month period preceding any claim. Furthermore, Licensee hereby agrees and acknowledges that any liability arising out of this Agreement or the business relationship between IMS and Licensee shall be limited to IM Solutions LLC, and Licensee shall not seek to collect any amounts or damages from any party which is an affiliate, owner, officer, employee nor director of IMS or any party with which IMS does business or licenses intellectual property. To the extent Licensee breaches this Section 19 by seeking to collect any amounts from any such third party, such third party shall be deemed to be a third party beneficiary of this Section 19 and shall be entitled to have such claim dismissed on account of Licensees agreements set forth in this Section 19. Licensee shall provide IMS timely written notice of any error, omission or violation of any third party right by IMS of any kind, immediately upon learning of same.
20.Entire Agreement; Amendment: This Agreement cancels and supersedes any and all prior written and unwritten agreements and understandings between the parties pertaining to the matters covered in this Agreement. No obligations, agreement or understanding shall be implied from any course of dealing, as all obligations, agreements and understandings with respect to the subject matter hereof are expressly set forth herein. All understandings and agreements, whether written or oral, heretofore had between the parties (if any) are merged into this Agreement, which alone fully and completely expresses the parties total agreement. No amendment to this Agreement shall be effective unless reduced to writing and either signed by both parties or, in the case of IMS, posted by IMS at the IMS Websites (in which case such amendment shall be binding on both parties ten (10) calendar days from the date of such posting); provided, that (i) changes increasing amounts payable by Licensee as Fees shall not be effective until thirty (30) days from the delivery of notice by IMS to Licensee (which may include, without limitation, notification to Licensee via a message posted at the IMS Website), and (ii) Licensee shall be permitted to terminate this Agreement, in accordance with this Agreements terms, but by providing thirty (30) days written notice to IMS within ten (10) days of the posting of any modification to this Agreement, in which case Licensee shall remain subject to the version of this Agreement in effect immediately prior to the posting of such modification for such thirty (30) day period. Licensees continued use of the Services after such ten (10) day posting period, if no termination notice has been provided, shall constitute its express acceptance of any such amendment posted at the IMS Website, including without limitation any Fee increases. Licensee is advised to review this Agreement from time to time for changes. The most recent date on which this Agreement has been modified or amended is posted at the top of this Agreement.
21.Venue and Choice of Law:
(a) This Agreement is intended to and shall be governed by the laws of the State of Hawaii (without regard to its rules regarding conflicts of laws). Exclusive venue for any applicable state or federal court, or arbitration tribunal, shall lie within Honolulu County, Hawaii.
(b)The parties specifically agree that any dispute arising out of or under this Agreement shall be subject to a Statute of Limitations of one (1) year including but not limited to any arbitration claim which must be filed within one (1) year after it arises, or be forever time barred, unless such cause of action arises out of Licensees improper disclosure or use of IMS confidential information, or the violation of IMS proprietary rights, which then shall be governed by the applicable statute of limitations under state or federal law, as the case may be.
22.Arbitration: Except as provided below, any controversy or claim asserted by Licensee or IMS arising out of or relating to this Agreement, or the breach hereof, shall be resolved by final and binding arbitration in accordance with the rules, then obtaining, of the American Arbitration Association (Commercial Rules) in State of Hawaii, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. A party may bring an action in state or federal court if, and only if, the total damages such party seeks, inclusive of attorneys fees, and interest, do not exceed $10,000.00.
Any claim arising from this Agreement or the Services offered herewith shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. In the event of any arbitration or litigation arising out of or relating to this Agreement, the substantially prevailing party in such action shall be entitled to recover all costs and fees associated therewith including, without limitation, reasonable attorneys' fees.
23.Assignment; Binding Agreement: IMS shall be permitted to assign this Agreement in its entirety, without the consent of Licensee, (i) to an affiliate, parent company or subsidiary, and (ii) in connection with a merger or sale of all or substantially all of IMS equity or assets. Upon any such assignment by IMS, all references to IMS in this Agreement shall be deemed to be references to IMS assignee of its rights and obligations under this Agreement and IMS itself shall have no further obligations under this Agreement. Licensee may not sell, transfer or otherwise assign its rights under this Agreement without the prior written approval of IMS (which approval may be granted or withheld in IMS sole discretion). This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors and assigns of the parties.
24.No Waiver: The waiver of any provision or breach of this Agreement shall not be deemed a waiver of any other provision or breach of this Agreement.
25.Duplicate Counterparts; Acceptance of Service: This Agreement may be executed in duplicate counterparts to the extent a hard copy of this Agreement is to be signed, and each such executed counterpart shall be deemed an original. Further, to the extent a hard copy of this Agreement is to be signed, as IMS has provided Licensee with a copy of this Agreement, the payment of any Fees by Licensee, combined with the delivery of Services and acceptance of payment in full or in part by IMS, will be deemed to constitute acceptance of this Agreement by both parties, whether or not this Agreement has been signed by either or both parties.
26.Notice. All notices required or permitted under this Agreement shall be in writing and shall be deemed received when (a) delivered personally, (b) sent by confirmed facsimile (followed by the actual document via U.S. mail), (c) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt, or (d) sent by e-mail. Unless otherwise indicated in writing by either party to the other party, all communications shall be sent to the address set forth for each party on the signature page hereto, or, if this Agreement is signed electronically, (i) for IMS at its principal place of business listed above or as otherwise posted at the IMS Websites from time to time, and (ii) for Licensee, at its principal place of business as provided to IMS either during Licensees sign-up for services or as otherwise provided by Licensee to IMS in writing.
27.Outsourcing. Licensee hereby acknowledges that IMS may, in its sole discretion, outsource and/or subcontract certain functions in providing the Services. IMS shall not be liable for any actions or omissions of any such third party.
28.Non-Solicitation; Non-Competition. Licensee hereby agrees that it shall not, at any time during the Term and for two (2) years following expiration or termination of the Term for any reason, (i) solicit any of the clients, attorneys or other business entities participating in the IMS network, or otherwise cause such entities, to cease doing business with IMS, (ii) directly or indirectly provide services to any of IMS customers which are substantially similar to those provided by IMS, or (iii) otherwise interfere with IMS relationship with any of its customers (which includes, without limitation, a prohibition on the sale or license by Licensee of a software platform or system substantially similar to the CMS).
29.Force Majeure. IMS shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of god, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, pandemic, epidemic, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
30.Independent Contractors.
(a)In the performance of the work, duties and obligations assumed by each party under this Agreement, it is mutually understood and agreed that each party is at all times acting and performing as an Independent Contractor and not the agent or employee of the other party.
(b)Each of the parties agrees to pay and be responsible for any applicable federal, state and local income taxes, withholding, estimated payments, FICA, self-employment tax, unemployment and disability benefits, Workers Compensation obligations and the like, for itself and for any employees retained in performing its respective obligations under this Agreement.
(c)The parties agree that they shall not be deemed an employee of the other for any purpose whatsoever, and shall not be eligible to participate in any benefit program provided for its employees, for life, health or dental insurance, pension or retirement benefits, sick leave, vacation pay and the like.
(d)All personnel and professional expenses of each party shall be the responsibility of such party, unless otherwise agreed in writing by the parties.
31.Severability Clause: If any part of this Agreement is determined to be illegal and/or unenforceable, all other parts shall be given effect separately and shall not be affected.
32.Incorporation of Sales Order and Credit Card of Record: The Sales Order and Credit Card Authorization for the Credit Card of Record are hereby incorporated by reference into this Agreement as if fully stated herein.
33.Compliance with Laws and Regulations: Notwithstanding any other provision of this Agreement to the contrary, each party will retain responsibility for its compliance with all applicable laws and regulations relating to its respective business and facilities and the provision of services to third parties, In performing their respective obligations under this Agreement, neither party will be required to undertake any activity that would violate any applicable laws or regulations.
34.IMS Election to Service Clients: IMS shall retain in its sole discretion the ability to choose which clients it will undertake as Licensees. Specifically, with respect to law firms, IMS reserves the right to require law firms desiring to do business with IMS to demonstrate to IMS reasonable satisfaction that it is and its attorneys are in good standing with their respective State Bar Associations.
35.Modifications to Program. The software provided under this agreement is intended to assist prospective clients to locate a suitable and qualified Licensee to handle their business, legal matters and other matters. To this end, IMS will continue to explore and adopt new technologies and methodologies, and make modifications to the software in an ongoing effort to improve the IMS software. Licensee agrees that IMS shall have the right to modify the layout, the features, or the processes of the software, with or without notice to Licensee.
36.Verification of Compliance: Licensee agrees that IMS may use various techniques to verify compliance hereunder, and may contact anyone in its inquiry, including any person, corporation, or entity submitting a Response over the IMS system or responding to IMS services in any fashion.
37. Survival of Certain Provisions: Sections 6, 8 through 12, 14, 15, 17, 19 through 22, 26, 28, 30 and 31 of this Agreement shall survive any termination or expiration of this Agreement.
State Advertising Disclaimers:
Alabama: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed byother lawyers.
Colorado: Colorado does not certify attorneys as specialists in any field.
Florida: The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.
Iowa: The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
NOTICE TO THE PUBLIC: Memberships and offices in legal fraternities and legal societies, technical and professional licenses, and memberships in scientific, technical and professional associations and societies of law or field of practice do not mean that a lawyer is a specialist or expert in a field of law, nor do they mean that such a lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa.
Kentucky: This website is not intended to solicit clients from the state ofKentucky.
Mississippi: The Mississippi Supreme Court advises that a decision on legalservices is important and should not be based solely on advertisements.
Missouri: Neither the Supreme Court of Missouri nor the Missouri Bar reviewsor approves certifying organizations or specialist designations.
The choice of a lawyer is an important decision and should not be basedsolely upon advertisements.
Nevada: The State Bar of Nevada does not certify any lawyer as a specialistor expert.
New Mexico: LAWYER ADVERTISEMENT.
Oregon: THIS IS AN ADVERTISEMENT
Tennessee: None of the attorneys in this firm are certified as a Civil Trial, Criminal Trial, Business Bankruptcy, Consumer Bankruptcy, Creditors Rights, Medical Malpractice, Legal Malpractice, Accounting Malpractice, Estate Planning or Elder Law specialist by the Tennessee Commission on Continuing Legal Education and Specialization. Certification as a specialist in all other listed areas is not currently available in Tennessee.
Texas: Not Certified by the Texas Board of Legal Specialization.
Wyoming: The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyers credentials and ability, and not rely upon advertisements or self-proclaimed expertise.
Restrictions on calling #SSDI [#7734] and #4LAW [#4529]:
#SSDI and #4LAW are available only on the Verizon Wireless and AT&T networks at the present time. There is no additional charge to a consumer for calling #SSDI or #4LAW, other than the consumers standard wireless rate with their own carrier.