MASTER SERVICES AGREEMENT
This MEDIASMACK Master Services Agreement and your order form (collectively, the “Agreement”) reflect the terms and conditions agreed upon between Customer (sometimes referred to as “you” or “your”) and Media Smack, LLC (“hereinafter referred to as “Company”, “we”, “us” or “our”) regarding the services identified on the order form or quote form. Referenced herein to an order form or quote form mean either a new order form, renewal order form, new quote form, or renewal quote form. If a conflict exists between the MEDIASMACK Master Services Agreement and an order form or quote form, the MEDIASMACK Master Services Agreement will control. Further this Agreement governs and applies to all services ordered by Customer whether included on an order form or quote form or not.
1.1 Scope of Services. Company will provide Customer the Services identified on an order form or quote form (also referred to herein as “order” or “quote”) in additional to those Services ordered by Customer and not included on an order form or quote form to which Company agrees to perform. “Services” means lawyer marketing services, which may include website development and hosting, search engine optimization, video production and hosting, e-mail services, online advertising (including paid advertising, directory advertising placements and lead generation), offline advertising, consulting or advisory services, and attorney recognition product. Company reserves the right to edit, suspend, or refuse to publish any Service or Work (as defined in Section 2) that Company believes would violate a third party’s rights or expose Company to liability.
1.2 Modification of Services. In the event that Customer is on a month to month Term, Company may modify our systems and Services from time to time. If we modify a Service in a manner that materially alters the nature and value of the Service, in our sole discretion, we will notify you at least thirty (30) days prior to the modification and Customer may opt to terminate the Service, effective upon modification, by providing us written notice of termination within five (5) business days following the modification. This Section shall not apply to any Services pursuant to a quote form, order form, or agreement to provide Services wherein the Term is anything other than a month to month Term.
1.3 Discontinuation of Services. Company may discontinue a Service at any time, at our discretion, and substitute one or more Services of comparable value, or Company may discontinue the Service and related charges without substitution.
1.4 Disallowed Content. We may refuse, modify, or remove from any Service content We deem to violate applicable law, our legal rights, or the rights of a third party. We may terminate the Services if we determine other remedies are ineffective.
1.5 Staffing and Third-Party Services. We may engage third parties to provide or fulfill the Services. You authorize us to engage third parties as necessary to provide you the Services, provided that we will be responsible for the performance of such third parties.
Subject to Your fulfillment of all payment obligations under this Agreement, we assign you all right, title, and interest we have in any work specifically created for You under the Agreement (the “Work”), except that: (a) any third-party data or intellectual property used to create the Work is specifically excluded, e.g., stock imagery, call tracking telephone numbers, online chat functionality, etc.; (b) we may use and distribute the Work as part of our portfolio and for promotional purposes in perpetuity; (c) we will own all rights to concepts, ideas, designs, and other materials which have been presented to you but are not included in the Work; (d) we will own and retain all rights, including our intellectual property rights, to any technology, inventions, algorithms, processes, data, software, architecture, source files, source codes, and other underlying elements used in the creation or hosting of any Work or Services (collectively the “Underlying Technology”).
3. Term and Termination
3.1 Term. This Agreement will become effective, without further notice of acceptance, when we accept your order or as of the time frame set forth in the quote, whichever is earlier. The Agreement will continue for the remainder of the month in which it was accepted, plus the number of months indicated on the order form or quote form as the initial term or the renewal term (“Order Term”).
3.2 Automatic Renewal. Following any Order Term, Services will automatically renew and continue at then-current list pricing for an automatic Order Term of one (1) year unless Customer provides written notice of non-renewal at least thirty (30) days prior to the expiration of the initial Order Term or at least thirty (30) days prior to the expiration of any Renewal Order Term.
3.3 Termination. Either party may terminate an order form or quote form by giving the other party written notice of its intent to do so thirty (30) days the
3.4 Other Events of Termination. This Agreement may be suspended or terminated at the sole discretion of Company if Customer fails to pay any amount of the Charges when they are due.
4. Charges and Payment
4.1 Charges. Customer will pay Company the charges identified on the order form or quote form plus any applicable taxes (“Charges”). List prices are subject to change upon thirty (30) days notice by Company to Customer.
4.2 Payment. Charges will begin to accrue on the Effective Date and will be billed as indicated in the order form or quote form. Charges may be invoiced and/or become payable prior to the Services being released, as certain Services require customization and collaborative development to occur before final release, e.g., website development. You agree to pay all invoices in full within thirty (30) days of the invoice date.
4.3 Collection. Company will use every method available to it in order collect all Charges due by Customer under the terms of this Agreement, including but not limited to bringing an action for all Charges due and/or taking any action allowed by law. If the collection of any Charges due under this Agreement are referred and/or assigned for collection to an attorney or collection agency, Customer will be responsible for all fees and costs (including attorneys fees) incurred by Company in collecting any and all Charges due under this Agreement.
5.1 Disclaimer of Warranty. We make no guarantees, representations, or warranties to you regarding the results or performance of the Services, including the quality or volume of Internet traffic or business the Services will generate. Certain technologies used by Internet users may not support features or functionalities included in the Services. We will have no liability for claims related to Internet users’ inability to access the Services. The Services are provided “as is” without warranty of any kind, express or implied, including warranties of performance, merchantability, fitness for a particular purpose, accuracy, and completeness. We do not warrant that the Services will be delivered free of any interruptions, delays, omissions, or errors (“Faults”), or that we will be able to correct all Faults. Company makes no warranty of any kind, whether express or implied, with regard to any third party products, third party content or any software, equipment, or hardware obtained from third parties. Customer agrees that no representations, verbal, written, or otherwise have been made other than what is contained in this Agreement.
5.2 Customer Expectations. Company does not warrant that the Services will meet the Customer’s expectations or requirements. The entire risk as to the qualify and performance is with the Customer.
5.3 Third-Party Sites. As part of the Services, we may submit your business profile information (firm and attorney names, contact information) and certain Work(s) for publication on third-party sites, such as directories or social media pages. Those sites may allow others to comment positively or negatively about Your firm or its attorneys or repost and share Your information or Work. You consent to such submissions and publications, understand that We do not control those sites and will not be responsible for removing or editing the Work or any comments after publication.
6. No Legal Advice
No statement, written or oral, by us, our employees, representatives, or contractors, is to be construed as legal advice. Some states restrict the visual and textual content attorneys may use in advertising, and some states require approval or pre-approval of lawyer advertisements. You are solely responsible for complying with laws and regulations applicable to lawyer advertising and Your use of the Services.
7. Limitation of Liability
In no event shall Company, or any affiliate, officer, director, employee, attorney, or agent of Company, be liable to Customer for any special, consequential, incidental, punitive, or indirect damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, anticipated savings, lost business, lost revenue, lost goodwill, data or other intangible losses, whether or not foreseeable or alleged to be, based on breach of warranty, contract, negligence or strict liability, arising under this Agreement, loss of data, or any performance under this Agreement, even if such party has been advised of the possibility of such damages and notwithstanding the failure of essential purposes of any limited remedy provided herein. Customer agrees that Company will not issue any refunds.
8. Limitation of Claims
No claim arising out of or related to any Service may be brought by either party more than twelve (12) months after the Service ends, except that We may bring an action to collect unpaid Charges at any time prior to the expiration of the applicable statute of limitations.
9. Customer Representations, Warranties and Guarantees
9.1 Permission to Use. Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided by Company for inclusion on the website are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Company and its subcontractors from any liability or suit arising from the use of such elements.
9.2 Customer Responsibilities. For purposes of the Services to be provided under this Agreement, Customer agrees: (a) On any Services for design of a website, Company will present two web designs to Customer for approval. Within seven (7) days of submission, Customer must choose one design and may make revisions to the chosen design. Customer may make up to three rounds of design changes for no additional fees. If no changes are submitted within the seven (7) calendar days, the web design and artwork is considered approved by Customer. If Customer wants further design changes to the website after the allotted time, Customer will be subject to additional fees for such Services. (b) Customer agree to provide Company with FTP access to its website(s) for uploading new pages and making changes for purposes of any SEO Services optimization.
9.3 Customer Acknowledgements. Customer acknowledges that Company has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer’s website(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity. Customer acknowledges that some search engines and directories may take as long as two (2) to four (4) months, and in some cases longer, after submission to list Customer’s website(s). Customer acknowledges that occasionally, search engines and directories will stop accepting submissions for an indefinite period of time and that search engines and directories will drop listings for no apparent or predictable reason. Customer acknowledges that some search engines and directories offer expedited listing services for a fee and Customer agrees that Customer is responsible for payment of any and all expedited service fees unless otherwise noted in the Order or Quote. Customer acknowledges that Company is not responsible for changes made to Customer’s website(s) maintained, created or edited by other parties that adversely affect the search engine or directory rankings of Customer’s website(s). Customer acknowledges and agrees that Company is not liable for Malware attacks, issues with third party software, delays due to client or third party changes, spam problems, website hijacking, malware injection, internet hacking, or e-mail problems such as the configuration of email settings as Company does not manage email hosting.
10.1 Your Indemnification Obligations. You agree to indemnify and hold us harmless from and against any third-party actions, causes of action, liability, damages, costs and expenses, including attorneys fees (collectively “Losses”), arising out of a claim(s) that (a) content or materials You provided to us for use in the creation or publication of a Work, or the delivery of the Services, infringes on a third party’s intellectual property rights; (b) the Work or Services you approved includes content that is false, offensive, deceptive, or defamatory, or may other cause harm to Us or a third party; (c) content or materials You provided to Us contained bugs, viruses, or malicious code; (d) Your use of the Services failed to comply with applicable laws, rules, or regulations regarding attorney conduct, advertising or data privacy; or (e) You failed to comply with applicable third-party terms of service made known to You by Us.
10.2 Outside Hosting. Customer agrees to indemnify and hold Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) harmless from and against any and all claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of Hosting outside of Company’s servers and/or by refusing Company’s Cloudflare DNS service. Any fixes to the server or website(s) to such servers or websites that are not hosted by Company and/or not in Company’s Cloudflare service will be billed to Client.
10.3 Government Taxes/Tariffs. From time to time governments may enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that Customer is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
11. Confidential Information
The Parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The Parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential information shall remain the sole and exclusive property of that party. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date. If a court or government agency orders either party to disclose the other party’s Confidential Information, the other party will be promptly notified so that an appropriate protective order or other remedy can be obtained, unless the court or government agency prohibits prior notification.
12. Use of Data
We collect data from You and from users of the Services, directly and by using various technologies, such as cookies, pixels, and remarketing tags embedded into the Services. You agree that We may use third parties to assist in this data collection pursuant to Section 1.6. we use the data to help Us better understand the Services’ performance, the audience reached by the Services, and how we may better reach audiences in the future. We will share data as necessary to effectively provide the Services, comply with the law, and to protect our rights. We own data that We collect from the Services, and We will store the data in accordance with our retention policies, which are subject to change from time to time.
Except as otherwise set forth in the Agreement, notices to You will be sent to the postal and/or e-mail address identified on the order form, quote form or otherwise provided by You. All notices to us must be submitted in writing to Media Smack, LLC, Attn: Zach Thompson, 700 Lavaca Street, Suite 1400, Austin, TX 78701.
14. Governing Law and Venue
This Agreement is governed by the laws of the State of California without regard to conflict of law rules that might direct the application of another jurisdiction’s laws. The parties agree that the state and federal courts sitting in California will have exclusive jurisdiction over any claim arising out of this Agreement, and each party consent to the exclusive jurisdiction of such courts. Each party further waives all defenses or objections to such jurisdiction and venue. Any and all disputes, claims, and causes of action arising out of or relating to this Agreement shall be resolved individually, without resort to any form of class action.
15. General Provisions
15.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the Services. This Agreement supersedes any prior understanding and agreements regarding the Services, and You acknowledge that you are not relying on any oral or written statement that is inconsistent with, or not set forth in, this Agreement.
15.2 Amendments. We may amend the Agreement terms at our discretion to address technological, operational, or regulatory changes affecting delivery of the Services and You agree to be bound by such amendments, provided that the amendment does not materially affect the nature of the Services, or related Charges, to your detriment. You may access the current MEDIASMACK Master Services Agreement, including any revisions thereto, at: www.mediasmack.com. Any other amendment to the Agreement must be documented in a writing signed by both parties.
15.3 Force Majeure. Each party’s performance under the Agreement is subject to interruption and delay due to causes beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor dispute, or inability to obtain necessary supplies.
15.4 Relationship of Parties. The parties hereto are independent contractors. Neither party is an agent, representative, or partner of the other. Neither party shall have authority to enter into any agreement on behalf of the other, or undertake any obligation or liability for (or otherwise bind) the other party, except as provided in Section 1.6.
15.5 No Exclusivity or Conflict of Interest. We may provide Services to law firms throughout the world, without limitation. You agree that our provision of Services to other law firms, including Your competitors, does not give rise to a conflict of interest.
15.6 No Assignment. You may not assign the Agreement to anyone else without our prior written consent. We will provide You with written notice if we need to assign the Agreement as part of our business operations.
15.7 Waiver. If either party fails to require the other to perform any term of this Agreement, that failure does not prevent the party from later enforcing that term. If either party waives the other’s breach of a term, that waiver will not be treated as waiving a subsequent breach of the term.
15.8 Severability. If any term of this Agreement is deemed unenforceable for any reason, the remaining terms shall continue to be fully enforceable.
15.9 Survival. Any term of this Agreement that provides a right or imposes an obligation after the termination or expiration date will survive the termination or expiration and be binding on the parties.
15.10 Arbitration. Customer and Company agree to make a good-faith effort to resolve any disagreements arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) agreed to by the Parties or (b) selected at the sole discretion of the American Arbitration Association administrator and who shall be a licensed attorney with at least ten (10) years’ experience in the practice of law. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of California sitting without a jury, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of California or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provision, or injunctive relief from any court.
15.11 No Inference against Author. No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
15.12 Read and Understood. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.