These Terms and Conditions ("Standard Terms") hereby incorporate as thoughtfully set forth herein Einstein Industries, Inc.’s (“Company”) Privacy Policy and Acceptable Use Policy located at http://einsteinindustries.com/policies. These Standard Terms shall further be deemed incorporated by reference into any Invoice (the "Invoice") submitted by the Client or its agency identified as such on the Invoice (collectively, "Client"). The Invoice and These Standard Terms shall govern all agreements and actions between Einstein Industries, Inc., its subsidiaries LawyerShop, Docshop and Value Added Benefits (hereinafter collectively referred to as “Company”) and Client. To the extent the Invoice and the Standard Terms conflict, the Standard Terms shall govern except for those relating to advertisement scheduling and pricing. These Standard Terms shall supersede any and all other agreements or representations between the parties whether verbal or written. All Invoices are subject to acceptance by Company. The Standard Terms combined with the Invoice shall be collectively known as the "Agreement." Client and its agency (if applicable) shall be jointly and severally responsible for all legal obligations under this Agreement. 1. Services and Products by Company. All services or products to be rendered by Company shall be listed on the Invoice submitted by the Client and accepted by Company. Any changes to the Invoice must be submitted in writing and accepted by Company. All Services performed by Company pursuant to the Invoice shall be deemed accepted by client at the time of submission of the deliverable to client. Any changes, modification, additional services or additional products to be rendered by Company shall be the subject of a new Invoice. Company currently offers the following Services and Products: 1.1. Website Hosting. Website Hosting shall be defined as the provision of sufficient server space to electronically store the Client’s Website on a server of Company’s choosing. Company shall use its best efforts to electronically maintain the Client’s Website and the server so that both shall remain online on a continuous basis. If Client activates an email service provided by Company, the email service and related contact forms linked to the Client’s Website is active for the duration of the contract. Upon contract expiration, the email services and contact forms are deactivated. 1.1.1. Section 1.1 will not be valid if the Client’s Website functionality is based on any of the following technologies:
1.1.2. Client represents and warrants that: (1) it is authorized and has the right to provide the service(s) and/or product(s) advertised on the Website; (2) it is authorized and has the right to use without limitation any and all illustrations, copy, photographs, personal or corporate names, copyrighted materials, graphic or pictorial reproductions, trade names, trademarks, endorsement language, and any other items used in the Website; and (3) no materials used in the Website infringe upon any intellectual property, publicity, or privacy rights of any third party and are not defamatory. Furthermore, Customer acknowledges that it has reviewed the graphic, design and textual materials placed on the Website, and warrants that there are no intellectual property, publicity, or privacy right infringement(s), or libel associated with the materials used in the Website. The Customer agrees to indemnify, defend, and hold harmless, Einstein, its directors, officers, employees, attorneys, affiliates, representatives, and agents with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorney's fees, arising out of or in connection with any claim made by any person in connection with the content of the Website. The Customer assumes soles responsibility for protection of its copyright, trademark or other right or interest in any illustration, copy, language and any other items used in the Website. 1.2. Listing. Listing shall be defined as a recordation of Client’s Website on Company’s Directory. If Listing is purchased by Client, Company agrees to provide Client with a Listing on Company’s website (as described on the Invoice) during the Term of this Agreement. 1.2.1. At the end of the current term, this agreement will automatically be renewed for a subsequent 30-day term. This automatic renewal process will occur at the end of each 30-day term unless either party submits written notice of its intention not to renew. This notice must be submitted at least 30 days prior to the expiration of a 30-day term. Each renewal shall be billed at the current list price. 1.3. Custom Website. Custom Website shall be defined as a Website designed by Company. The Custom Website size and components are described in the Invoice. The Custom Website design may include materials provided by the Client and is based on the homepage design approved by the Client. For Websites that have patient before-and-after photographs, Client may choose to use one page of the Website as a before-and-after photograph gallery and include up to 40 photographs. The photographs must be submitted during the Website production process or no more than 30 days after Website launch to be included in a free gallery. If the photographs are submitted more than 30 days after launch, Client is required to purchase the gallery. After completion of the Custom Website, and as long as the Client is paying for a directory listing or Search Engine Optimization with Company, changes to the Custom Website are performed in accordance with the Website Updates Policy (http://www.einsteinindustries.com/policies/website-updates-policy ). After the signed Website Copyright is returned to Company and full payment has been received for completion of the Website, the Website design, including finished graphics and text, become the property of the Client. If necessary, original graphic source files will be made available for purchase. Custom Website includes the following components:
1.3.1. Website Redesign: Website Redesign shall be defined as a new custom visual theme (design) applied to an existing Website. Company will incorporate HTML Website Build steps necessary to apply the Website Redesign to an existing Website. The Website Redesign will include up to two (2) design compositions from which the Client may choose and approve one (1) composition. Original composition(s) will be submitted for Client’s review as a static JPEG image. Client may request up to two (2) revisions of Client’s chosen design composition image during the design approval process. Client may purchase additional design compositions at a cost of five hundred dollars ($500) per composition. Design composition revisions, in excess of the original two (2) allotted, will be billed at rate of two-hundred-fifty ($250) per hour (one hour minimum). If necessary, original graphic source files will be made available for purchase. Upon approval of design composition image, Company will begin HTML build of Website based on approved image. Client may request one (1) design revision during the HTML build process of the Website Redesign. Design revisions in excess of the original one (1) allotted during the build process will be billed at a rate of two-hundred-fifty ($250) per hour (one hour minimum). Website Redesign includes HTML build of up to 5 HTML pages. Additional HTML pages will be billed at a rate of two-hundred-fifty dollars ($250) per page. Website Redesign does not include changes to content, file structure, information architecture, Website navigation (other than visual representation), or any other changes that fall outside the scope of providing a new custom visual theme for an existing Website. Any work associated with such changes or the addition of components requested by Client will be defined as falling outside the scope of the Website Redesign and be billed at rate of two-hundred-fifty ($250) per hour (one hour minimum), or additional changes or components will be described in an Invoice and billed to Client at a flat rate based on project description. 1.3.2. Flash: Flash shall be defined as the use of animation software to create custom animations to be displayed on a Website. Basic Flash package includes the following:
Advanced Flash package includes the following:
If necessary, original animation source files will be made available for purchase. 1.4. Search Engine Optimization. Search Engine Optimization (“SEO”) shall be defined as designing the Client’s Website so that it is more likely to be indexed by search engines for the key word phrases and topic areas of the Client’s Website. The SEO process consists of the following: review of the Client’s Website, strategic placement of designated key words and meta tags in the Client’s Website, registration of the Website with the search engines, and maintenance of the registration for the duration of the contract. If Client terminates SEO services, the Company will cease to maintain the registration of Client’s Website with the search engines and directories. SEO includes the following services:
1.5. Blog. Blog shall be defined as an open-source blog attached to and designed to match the Client’s Website. Client shall be responsible for all posts and comment management. Einstein will offer limited technical support. Technical support is available online from the blog developer. Company recommends Client consult with its own legal counsel to ensure compliance with federal and state laws regarding content and policies for the Blog and makes no representations regarding legal compliance for the same. Blog includes the following features:
1.6. E-Commerce. Online shopping carts are attached to and designed to match client website. The online cart works with numerous online payment portals including PayPal and Google Checkout, which allow credit card transactions. Company can also integrate a merchant account for a fee. A three percent (3%) per-transaction fee is incurred by the client on all transactions. This fee is non-negotiable. Company enters the first ten (10) products at the time of set-up. All future product additions and changes can be administered by the Client through an online admin panel for free. Production additions or changes made by Company necessitate an additional Invoice and an additional fee is charged. 1.7. Practice Privacy Policy and Patient Privacy Notice Module. Practice Privacy Policy and Patient Privacy Notice Module is defined as programming such that if Client provides Company a Practice Privacy Policy and Patient Privacy Notice in an electronic format, the same will appear on each page of the practice website and such that the Patient Privacy Notice appears in a “pop-up window” before an email can be sent. The patient must agree or disagree with the privacy notice in order to send the email. A report is generated each month listing the number of patients who activated the electronic signature on the patient privacy notice. This product requires that the website be hosted on Company servers or that FTP access be given to the website. 1.8. Call Stats. Call Stats is defined as a local or toll free phone number is provided to the client for the duration of the contract as well as statistics of all calls made to this tracking phone number is which are reported in the client’s Company Extranet. For maximum ability to track, each Call Stats phone number should only be used on one (1) website or in one (1) advertisement. Upon expiration of the contract, Company deactivates the Call Stats phone number and removes it from any websites it was displayed on. 1.9. Click To Call. Click To Call is defined as a module for the Client’s website that allows website users to call the practice toll free from the website. Statistics of all calls made using the Click To Call module is reported in the Client’s Company Extranet. Upon expiration of the contract, Company removes the Click To Call module from the website and deactivates the service. 1.10. Call Archiving. Call archiving is defined as a feature of the Client’s Company Extranet that records and archives calls placed through a Call Stats phone number. Call recordings can be accessed and reviewed 24 hours per day. Upon expiration of the contract, Company deactivates the service. 1.11. Domain Registration. Domain registration shall is defined as the management of a domain name by Company on behalf of the Client. Upon expiration of this contract, the Client is given the opportunity to transfer management of the domain. If management of the domain is not transferred, Company will allow the domain to expire. 1.12. Pay-Per-Click Advertising. Pay-Per-Click (“PPC”) Advertising is defined as the management of PPC advertising by Company on behalf of the Client. A budget is determined before the advertising is purchased. Client is responsible for all advertising costs incurred. A one-time set-up fee per campaign and a monthly management fee is charged and shall be reflected on the corresponding Invoice. 1.13. Video Website Platinum Package. Video Website Platinum Package is defined as video production (including pre- and post-production services), Video Website software and Video SEO formatting and submission. Client is responsible for approving the production script prior to the day of the shoot. The video website platinum package includes 30 video clips; any additional clips will be billed at $500 per clip. The cost of the Video Website Platinum Package does not include travel expenses for the production crew. Client is responsible for these expenses, which will not exceed two thousand dollars ($2,000.00). Cancellation or rescheduling of the shoot date must be made thirty (30) days prior to the scheduled shoot date. In the event of cancellation within thirty (30) days of the scheduled shoot date, Client is charged for all non-refundable travel expenses incurred by Company and Client shall incur a five hundred dollar ($500.00) cancellation fee. In the event of rescheduling within thirty (30) days of the scheduled shoot date, Client is responsible for all non-refundable travel expenses incurred by Company and the travel expenses for the rescheduled shoot. An annual licensing fee of $2500 and annual hosting fees of $50 per minute of video will be charged after the first year of service. Annual fees will be billed in monthly installments. 1.14. Video SEO. Video is defined as Company’s transcription, formatting, and submission of video provided by the Client to various video indexing websites. Video SEO fees do not include any software or editing fees. Software and/or editing fees may be incurred if the video is to be added to the Client website as part of a Media Player or Video Website. 1.15. Basic Website Media Player. The Basic Website Media Player is defined as Flash software which contains and showcases video on the Client’s website. Video is supplied by the Client. Video digitizing, editing and annual video hosting fees may also apply. 1.16. Video and Audio Hosting. Video and audio hosting is defined as the provision of sufficient server space to electronically store the Client’s media on a server of Company’s choosing. Company shall use its best efforts to electronically maintain the client’s media and the server so that both remain online on a continuous basis. 1.17. Website Generator Package. The Company Website Generator package is defined as a template website with a specific number of pages, from five (5) to unlimited, based on the package purchased. The Flash Pack and Ultimate Pack also include Flash animation. Website Generator sites are self-administered by the Client. The Client can make unlimited changes to Client’s Website Generator site through the online interface. Company does not offer corrections to Website Generator templates through the Included Website Updates. There is a one (1) time set-up fee and a monthly fee associated with the Website Generator. Client is billed a monthly fee for each Website Generator site. Client is billed the non-refundable fee in advance on a monthly basis until Client cancels Website Generator account. If Client cancels service during a billing cycle, the fee for the remaining portion of that billing cycle will not be refunded. 1.18. Newsfeed. Newsfeed is defined as a Flash news ticker and dynamically updated news page within the Client’s website. The Newsfeed service requires an annual subscription. If the annual subscription lapses, Company will remove the news ticker and news page within the Client’s website. Additional fees may be incurred if the Client’s website code requires changes for the Newsfeed to function properly on the Client’s site. 1.19. IMPACT Software (All Modules). IMPACT Software (All Modules) is defined as IMPACT Software plus the data storage, mass email capabilities, and email auto-responder available with this Software. Company attaches Client’s website forms to IMPACT for data collection and storage. Upon expiration of this contract, Company disconnects all forms and deactivates IMPACT Software access. 1.20. IMPACT Software (Database Auto-Responder). The IMPACT Database Auto-Responder Module is defined as an email auto-responder which allows the Client to schedule automatic responses which are sent whenever a potential client contacts a practice through a website form. Upon expiration of this contract, Company disconnects all forms and deactivates IMPACT Software access. 1.21. IMPACT Software (Mass Emailer). The IMPACT Database Driven Mass Emailer Module is defined as an email program which allows the Client to schedule custom email “blasts” to selected contacts. Upon expiration of this contract, Company disconnects all forms and deactivates IMPACT Software access. 1.22. IMPACT Software (Data Migration and File Storage). The IMPACT Data Migration and File Storage Module is defined as a database program that allows practices to gather client information from the website and store it in a client profile. Upon expiration of this contract, Company disconnects all forms and deactivates IMPACT Software access. 1.23. IMPACT Software (FAQ Responder). The IMPACT FAQ Responder Module is defined as an email program that allows the Client to send pre-written, standardized responses to frequently asked questions which are submitted via email. Upon expiration of this contract, Company disconnects all forms and deactivates IMPACT Software access. 1.24. PHP or Static Before and After Photo Gallery. The PHP or Static Before and After Photo Gallery is defined as a photo gallery with up to 40 photos – including retouching, resizing and other modifications that may be done to the photos. Additional photos may be added at $25 per photo. 1.25. Morphing Before and After Photo Gallery. The Morphing Before and After Photo Gallery is defined as a photo gallery which 1) contains images that gradually transform into other images using a computer animation technique and 2) includes up to 40 photos. The Morphing Before and After Photo Gallery includes retouching, resizing and other modifications that may be done to the photos. Additional photos may be added at $25 per photo. 1.26. Page Addition: Page Addition shall be defined as the integration of an HTML file representing a Website page into an existing Website. A Page Addition includes visual theme (design) of an HTML page consistent with the existing Website’s design; HTML Build of a new page file; content development for the additional page; and changes to structure, navigation, formatting, information architecture, and any other changes to the existing Website deemed necessary by the Company to fully integrate the Page Addition into the Website. Page Additions do not include design changes or content changes on pages other than those deemed necessary by the Company for integration of Page Addition. Any work associated with such changes or the addition of components requested by Client will be defined as falling outside the scope of the Page Addition(s) and be billed at rate of two-hundred-fifty ($250) per hour (one hour minimum), or additional changes or components will be described in an Invoice and billed to Client at a flat rate based on project description. Depending on Client’s needs, Page Addition count, pricing, and description may vary as described in the Invoice; Page Additions may require any combination of the following elements:
Client may elect to provide original Website content for Page Addition in conjunction with, or in place of, Website content developed by the Company. 2. License. Client grants Company a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Client's name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicize ads on the Company or its agent’s site, and for the purpose of including Client in Company’s marketing and promotional materials. Client further grants to Company a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Client (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination, for any reason, of all Invoices then in effect. 3. Term and Termination. 3.1. Term. The term of this Agreement commences on the Acceptance Date set forth in the Invoice and terminates on the End Date set forth in the Invoice. The term may be extended only upon written notice by Client to Company at least thirty (30) days before the expiration of the Invoice. If an extension is accepted by Company, a new Invoice shall be generated. Such Invoice shall be governed by the Standard Terms and Conditions in effect at the time of the issuance of the new Invoice. 3.2. Termination. This Agreement may be terminated at any time by either party, effective immediately upon written notice, if the other party: (i) files a voluntary petition in bankruptcy, (ii) makes an assignment for the benefit of its creditors, or (iii) breaches any of the material terms of this Agreement which breach is not remedied within ten (10) days from receipt of written notice of such breach. Unless expressly stated otherwise on the Invoice, either party may terminate any Invoice at any time for convenience, with or without cause upon forty-eight (48) hours prior written notice to the other party for any or all campaigns. Termination for convenience shall be without waiver or penalty except that such termination shall not relieve Client of the obligations to pay in full, at the time of termination, all sums due and owing to Company as set forth in the Invoice. If such Invoice allows for payment over time, then such sums shall be accelerated to the effective date of the termination. Payment is required on or before the termination date. Client agrees that if instructed to do so by Company and/or if this Agreement terminates, Client will immediately discontinue the use of the Service. 3.3. Survival Provisions. In the event of termination of this Agreement: Sections 3, 4, 5, 6, 7, and 8 together with any payment obligations incurred prior to the effective date of termination shall survive termination of this Agreement irrespective of whether one or both of the parties terminated the Agreement or the Agreement terminated by its own terms. 4. Confidential Information and Licensing Rights. 4.1. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by the Order and these Terms and Conditions, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under any Order or these Terms and Conditions or any other agreement between the parties; (b) any disclosure is required by applicable law; provided that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated Company Service, products, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Service. 4.2. Client grants Company a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Client's name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicize ads on the Client, Company or their agents’ website, and for the purpose of including Client in Company’s marketing and promotional materials. Client further grants to Company a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Client (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination of this Agreement and all Invoices then in effect.
5.1. To the extent that Client is an agency, such agency represents that it has the authority to bind, and has bound its principal to all terms in this Agreement and any applicable Invoice, including the representation and warranties. 5.2. Without limiting Section 5.1 above, Client warrants and represents at all times that (a) Client has all necessary rights and authority to enter into this Agreement and to grant Company the licenses granted herein, (b) the execution of this Agreement by Client, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Client is a party or by which it is otherwise bound, (c) the content provided by Client or linked to from Client’s website will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, obscene, or otherwise inappropriate, (iii) violate any applicable law or regulation, (iv) advertise any unlawful product or service or the unlawful sale of any product or service, or (v) use any trademark, trade name, or corporate name of Company without the prior written consent of Company. Client agrees to indemnify, defend and hold Company and Third Parties (if any) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of any of the foregoing representations and warranties, or (ii) any third party claim arising from use of or access to the Client’s website under this Agreement or any material to which users can link, or any products or services made available to users, through the Website under this Agreement. 5.3. Client agrees to indemnify, defend and hold harmless Company, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with Client’s (i) breach of any of the foregoing representations and warranties, (ii) any third party claim arising from use of or access to the Client’s Website under this Agreement or any material to which users can link, or any products or services made available to users, through Client’s Website under this Agreement, or (iii) Client's breach of this Agreement, (iv) any third party claim arising from use of or access to Client’s website which infringes upon any United States or international patent, copyright, trademark, trade secret, or other intellectual property right. Client shall pay all claims, judgments and defense costs, including attorney fees, and agrees to provide prompt written notice of any such claim. 5.4. Company agrees to indemnify, defend and hold harmless Client, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with the Company's breach of this Agreement. 6. Payments. 6.1. Payment Obligations. Client is obligated to pay Company in accordance with the pricing specified in each Invoice. If not specified otherwise, payment shall be prepaid before the start of Company’s Services or Products. Company may invoice Client, but payment by Client is not contingent upon receiving Company invoice. In the event Client fails to pay within five (5) days after payment is due, all outstanding charges shall bear interest at the rate of one and a half percent (1.5%) per month or the maximum interest rate permitted under applicable law, whichever is less. Client agrees that if Client does not pay within five (5) days after payment is due, Company may seek to satisfy Client’s payment obligations and to collect such payment. Client further agrees to pay all costs of collection (including court cost and reasonable attorneys fees) incurred by Company in connection with its enforcement of any Invoice. Unless Client objects to Company’s invoice within forty-eight (48) hours, the amount invoiced shall be final and binding. Client may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Client intends to dispute an invoice, Client shall provide a written report to Company within two (2) business days identifying, in detail, the discrepancies between the invoiced amount and Client’s evidence. Company may consider such report, but shall have final authority in determining the correct amount. 6.2. All Sales Are Final. All sales pursuant to the Invoice are Final and there are no refunds for contracted services for any reason. If Client decides to discontinue Services for any reason, Client remains liable for all sums due under the Invoice and these terms and conditions. 7. Proprietary Rights. Client agrees that it does not have, nor will it claim any right, title or interest in the Service, Products, the Company Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on the Company Site. Client will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Company Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition, Client acknowledges that all information, data and reports received from Company as part of the Services are proprietary to and owned by Company. If instructed to do so by Company, Client will immediately destroy and discontinue the use of any such reports or data, and any other material owned by Company or the third party Clients. 8. Limitation of Liability; Disclaimer of Warranty. Except as expressly set forth in this Agreement, Company makes no warranties and expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. Company shall not be liable for any Ad, Campaign, including but not limited to, the content thereof, any unavailability or inoperability of the Internet, unavailability or consequences of any Ad or Campaign, the Company Site, or Services, or any technical malfunction, computer error, corruption or loss of information related to or arising out of the Services, the Company Site or any Ad or Campaign. The information and content on the Company Site and via the service is provided on an “as is” basis with no warranty. In no event shall Company be liable for any lost profits, lost revenues or for any indirect, incidental, consequential, special or exemplary damages arising out of or related to this agreement, even if such damages are foreseeable and whether or not the other party has been advised of the possibility of such damages. 9. General Terms. 9.1. General. This Agreement, together with the Invoice and any other exhibits or attachments hereto, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties whether written or oral. Company may assign this Agreement to a subsidiary or business successor. Client may not assign this Agreement without the prior written consent of Company, which shall not be unreasonably withheld. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed e-mail, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth above, with a copy to Richard A. Shaw c/o Higgs Fletcher and Mack, 401 West A Street, Suite 2600, San Diego CA 92101 or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective upon receipt. In the event of a dispute, this Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in San Diego, California. In the event of a dispute arising under this Agreement, the Parties agree to submit the dispute to binding AAA arbitration in the county of San Diego, State of California. The Parties hereby consent to the jurisdiction of such arbitration and waive any objection to such method of dispute resolution. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. The parties agree that the relationship between Company and Client shall not constitute a partnership, joint venture, employment or agency. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. No term or condition other than those set forth in the Standard Terms or in the Invoice relating shall be binding on Company unless in writing signed by duly authorized representatives of the parties. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by Client, including Client's Invoice, and Client hereby disclaims any terms therein, except for terms therein relating to advertisement scheduling and pricing. 9.2. Advice of Counsel. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting. 9.3. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party. Subject to change
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